Your FREE and easy resource for all things Texas workers' compensation

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Administrative Law Judge determined that: (1) the preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that the Claimant/Petitioner is not entitled to microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant; and (2) Claimant/Petitioner did not timely appeal the IRO decision.

STATEMENT OF THE CASE

On December 30, 2019, Kara Squier, a Division administrative law judge, held a contested case hearing to decide the following disputed issues:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant?
  2. Did the Claimant/Petitioner timely appeal the IRO decision?

PARTIES PRESENT

Claimant/Petitioner appeared and was assisted by DM, ombudsman. Insurance Carrier/Respondent appeared and was represented by PW, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant/Petitioner: Claimant.

For Insurance Carrier/Respondent: None.

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibits: ALJ-1 through ALJ-3.

Claimant/Petitioner’s Exhibits: C-1 through C-8.

Insurance Carrier/Respondent’s Exhibits: CR-A through CR-E.

DISCUSSION

It is undisputed that Claimant/Petitioner sustained a compensable injury on (Date of Injury). Claimant testified that he worked for the employer as a facilities specialist, and he sustained an injury to his low back when he twisted to lift a box off a table. Claimant/Petitioner’s orthopedic surgeon, MK, M.D., requested preauthorization of microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant. On July 11, 2019, the utilization review agent, MN, M.D., sent out a decision in which she determined the requested surgery was not medically necessary in accordance with the Official Disability Guidelines (ODG). Dr. K submitted a second pre-authorization request, and on August 8, 2019, CR, M.D, the second utilization review agent, submitted a denial indicating the requested treatment was not medically necessary in accordance with the ODG. Due to the previous denials, Claimant/Petitioner requested a review by an independent review organization (IRO). The IRO reviewer upheld the previous denials, and Claimant/Petitioner appealed by requesting a medical contested case hearing.

Timeliness of Appeal

28 Texas Administrative Code (TAC) §133.308(s)(1)(A) states, to wit:

The written appeal must be filed with the Division's Chief Clerk of Proceedings no later than the later of the 20th day after the effective date of this section or 20 days after the date the IRO decision is sent to the appealing party and must be filed in the form and manner required by the Division. Requests that are timely submitted to a Division location other than the Division's Chief Clerk of Proceedings, such as a local field office of the Division, will be considered timely filed and forwarded to the Chief Clerk of Proceedings for processing; however, this may result in a delay in the processing of the request.

In this particular case, the IRO decision was issued and sent to the parties on September 16, 2019. The applicable deadline for the filing of the appeal of the IRO decision in this case was 20 days from the date the IRO decision was sent to the parties. In evidence is a request to schedule a medical contested case hearing signed by Claimant/Petitioner on October 15, 2019, and filed with the Division on October 21, 2019. Considering the IRO decision is dated September 16, 2019, Claimant/Petitioner’s request to schedule a medical contested case hearing was not timely. However, an assertion, or finding, that an appeal is untimely under 28 TAC §133.308 does not deprive the Division of subject matter jurisdiction to decide the disputed issue. The untimeliness of the appeal is a defense to the Insurance Carrier’s ultimate liability for the services or bill in question. See Medical Contested Case Hearing Decision No. 09122, M6-09-13618-01, citingIgal v. Brightstar Info. Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000); and City of Seabrook v. Port of Houston Auth., 199 S.W.3d 403 (Tex. App.-Houston [1st Dist.] 2006, pet. abated).

Medical Necessity

Texas Workers’ Compensation Act: Texas Labor Code §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 Labor Code §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 Labor Code §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. 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. Labor Code §413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the Commissioner are presumed reasonable in accordance with Labor Code §413.017(1).

In accordance with the above statutory guidance, the Division of Workers' Compensation has adopted treatment guidelines by 28 TAC §137.100. This rule directs health care providers to provide treatment in accordance with the current edition of the ODG, and such treatment is presumed to be health care reasonably required as defined in the Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG. Also, in accordance with 28 TAC §133.308(s), 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.

The ODG provides the following with regard to discectomy:

Required symptoms/findings; imaging studies; and conservative treatments below:

  1. Symptoms/Findings which confirm presence of radiculopathy. Objective findings on examination need to be present. Straight leg raising test, crossed straight leg raising and reflex exams should correlate with symptoms and imaging.

Findings require ONE of the following:L3 nerve root compression, requiring ONE of the following:

  1. Severe unilateral quadriceps weakness/mild atrophy
  2. Mild-to-moderate unilateral quadriceps weakness
  3. Unilateral hip/thigh/knee pain

L4 nerve root compression, requiring ONE of the following:

  1. Severe unilateral quadriceps/anterior tibialis weakness/mild atrophy
  2. Mild-to-moderate unilateral quadriceps/anterior tibialis weakness
  3. Unilateral hip/thigh/knee/medial pain

L5 nerve root compression, requiring ONE of the following:

  1. Severe unilateral foot/toe/dorsiflexor weakness/mild atrophy
  2. Mild-to-moderate foot/toe/dorsiflexor weakness
  3. Unilateral hip/lateral thigh/knee pain

S1 nerve root compression, requiring ONE of the following:

  1. Severe unilateral foot/toe/plantar flexor/hamstring weakness/atrophy
  2. Moderate unilateral foot/toe/plantar flexor/hamstring weakness
  3. Unilateral buttock/posterior thigh/calf pain

(EMGs are optional to obtain unequivocal evidence of radiculopathy but not necessary if radiculopathy is already clinically obvious.)

Imaging Studies, requiring ONE of the following, for concordance between radicular findings on radiologic evaluation and physical exam findings:

  1. Nerve root compression (L3, L4, L5, or S1)
  2. Lateral disc rupture
  3. Lateral recess stenosis

Diagnostic imaging modalities, requiring ONE of the following:

  1. MRI (magnetic resonance imaging)
  2. CT (computed tomography) scanning
  3. Myelography
  4. CT myelography and X-Ray

Conservative Treatments, requiring ALL of the following:

  1. Activity modification (not bed rest) after patient education (>= 2 months)
  2. Drug therapy, requiring at least ONE of the following:

Support provider referral, requiring at least ONE of the following (in order of priority):

  1. Physical therapy (teach home exercise/stretching)
  2. Manual therapy (chiropractor or massage therapist)
  3. Psychological screening that could affect surgical outcome
  4. Back school (Fisher, 2004)

For average hospital LOS after criteria are met, see Hospital length of stay (LOS).

For post-operative physical therapy recommendations after criteria are met, see Physical therapy (PT).

Risk versus Benefit:

The primary tradeoff is whether to undergo the risks of surgery, which are fairly small in this case, to achieve good short-run improvement of symptoms (success rate > 80%) faster than could also be achieved from conservative treatment alone. Minor pain and discomfort may not be worth the risks of surgery and the recovery time from surgery, depending on the patient's tolerance for risk, and there is no downside in delaying surgery. Patients whose pain is controlled in a manner that is acceptable to them may decide to postpone surgery in the hope that it will not be needed, without reducing their chances for complete recovery at 12 months. There is good evidence that discectomy is moderately superior to nonsurgical therapy for improvement in pain and function through 2 to 6 months, but patients on average experience improvement either with or without surgery, and benefits associated with surgery decrease with long-term follow-up. (Chou, 2009) (Chou, 2008) Similar evidence supports the use of surgery for spinal stenosis, but the outcomes look better with surgery out to approximately 2 years. (Malmivaara, 2007) In this trial, early surgery is associated with better short-term outcomes, but at 1 year, disability outcomes of early surgery vs conservative treatment (with eventual surgery if needed) are similar. The median time to recovery was 4.0 weeks for early surgery and 12.1 weeks for prolonged conservative treatment. (Peul, 2007) (Deyo, 2007) Consequently, for patients who don't want surgery no matter how bad their pain is, they will likely improve and they will not have complications from nonoperative treatment, but those patients whose leg pain is severe and is limiting their function, who meet the ODG criteria for discectomy, can do better in the short-term with surgery, and the risks are extremely low. (Weinstein2, 2008) In general, the risk of surgical complications is fairly small, approximately 3% for readmission and reoperation (Pugely, 2014), and 0.10% for death. (HCUP, 2011) For those receiving workers' compensation, surgery may not be better than non-surgical treatment for most patients, even in the short-run. (Atlas, 2010) (DeBerard, 2008) In workers' comp it is recommended to screen for presurgical biopsychosocial variables because they are important predictors of discectomy outcomes. (DeBerard, 2011) Obese patients have an increased risk of postoperative complications after lumbar spine surgery, but these are not associated with a greater risk of mortality. (Marquez-Lara, 2014) Smokers have much worse outcomes from lumbar decompression than nonsmokers, with an odds ratio for reoperation over 11. (Bydon, 2015) (Dewing, 2008)

NNH/NNT Without taking into account specific risk factors, like smoking, obesity, or workers' comp, the NNH (number needed to harm) is approximately 33, and the NNT (number needed to treat) for short-term improvement is approximately 1.2, but the NNT for long-term improvement is well over 10, compared to conservative treatment.

Surgical discectomy for carefully selected patients with radiculopathy due to lumbar disc prolapse provides faster relief from the acute attack than conservative management, although any positive or negative effects on the lifetime natural history of the underlying disc disease are still unclear. Unequivocal objective findings are required based on neurological examination and testing. (Gibson, 2000) (Malter, 1996) (Stevens, 1997) (Buttermann, 2004) (Chou, 2008) For unequivocal evidence of radiculopathy, see AMA Guides. (Andersson, 2000) Standard discectomy and microdiscectomy are of similar efficacy in treatment of herniated disc. (Bigos, 1999) While there is evidence in favor of discectomy for prolonged symptoms of lumbar disc herniation, in patients with a shorter period of symptoms but no absolute indication for surgery, there are only modest short-term benefits. (Osterman, 2006) The SPORT studies concluded that both lumbar discectomy and nonoperative treatment resulted in substantial improvement after 2 years, but those who chose discectomy reported somewhat greater improvements than patients who elected nonoperative care. (Weinstein, 2006) (Weinstein, 2006) In the treatment of patients with lumbar spinal stenosis, patients improved over the 2-year follow-up regardless of initial treatment, and those undergoing decompressive surgery reported greater improvement regarding leg pain, back pain, and overall disability, but the relative benefit of initial surgical treatment diminished over time while still remaining somewhat favorable at 2 years. (Malmivaara, 2007) Patients undergoing lumbar discectomy are generally satisfied with the surgery, but only half are satisfied with preoperative patient information. (Ronnberg, 2007) If patients are pain free, there appears to be no contraindication to their returning to any type of work after lumbar discectomy. A regimen of stretching and strengthening the abdominal and back muscles is a crucial aspect of the recovery process. (Burnett, 2006) Although both surgery and nonsurgery have similar outcomes after 1 year, early surgery remains a valid treatment option for well-informed patients. (Peul, 2007) (Deyo, 2007) There is no obvious additional benefit was noted by combining decompression with instrumented fusion. (Hallett, 2007) A British study found that lumbar discectomy improved patients' self-reported overall physical health more than other elective surgeries. (Guilfoyle, 2007) Microscopic sequestrectomy may be an alternative to standard microdiscectomy. In this RCT, both groups showed dramatic improvement. (Barth, 2008) Discectomy is moderately cost-effective compared with nonsurgical treatment, according to a SPORT study shows. The costs per quality-adjusted life-year gained with surgery compared with nonoperative treatment, including work-related productivity costs, ranges from $34,355 to $69,403, depending on the cost of surgery. It is wise and proper to wait before initiating surgery, but if the patient continues to experience pain and is missing work, then the higher-cost option such as surgery may be worthwhile. (Tosteson, 2008)

Four-year results for the Dartmouth Spine Patient Outcomes Research Trial indicated that patients who underwent standard open discectomy for a lumbar disc herniation achieved significantly greater improvement than non-operatively treated patients (using recommended treatments - active physical therapy, home exercise instruction, and NSAIDs) in all primary and secondary outcomes except work status (78.4% for the surgery group compared with 84.4%). Although patients receiving surgery did better generally, all patients in the study improved. (Weinstein2, 2008) In most patients with low back pain, symptoms resolve without surgical intervention. (Madigan, 2009) This study showed that surgery for disc herniation was not as successful as total hip replacement but was comparable to total knee replacement in success. (Hansson, 2008) Both standard open discectomy and microdiscectomy are moderately superior to nonsurgical therapy for improvement in pain and function through 2 to 3 months, but patients on average experience improvement either with or without surgery, and benefits associated with surgery decrease with long-term follow-up. (Chou, 2009) Use of appropriateness criteria to guide treatment decisions for each clinical situation involving patients with low back pain and/or sciatica, with criteria based upon literature evidence, along with shared decision-making, was observed in one prospective study to improve outcomes in low back surgery. (Danon-Hersch, 2010) An updated SPORT trial analysis confirmed that outcomes of lumbar discectomy were better for patients who have symptoms of a herniated lumbar disc for six months or less prior to treatment. Increased symptom duration was related to worse outcomes following both operative and nonoperative treatment, but the relative increased benefit of surgery compared with nonoperative treatment was not dependent on the duration. (Rihn, 2011) Comparative effectiveness evidence from SPORT shows good value for standard open discectomy after an imaging-confirmed diagnosis of intervertebral disc herniation [as recommended in ODG], compared with nonoperative care over 4 years. (Tosteson, 2011) Carefully selected patients who underwent surgery for a lumbar disc herniation (standard open discectomy) achieved greater improvement than non-operatively treated patients (active physical therapy, education/counseling with home exercise instruction, and NSAIDS), and there was little to no degradation of outcomes in either group (operative and nonoperative) from 4 to 8 years. (Lurie, 2014) Note: Surgical decompression of a lumbar nerve root or roots may include the following procedures: discectomy or microdiscectomy (partial removal of the disc) and laminectomy, hemilaminectomy, laminotomy, or foraminotomy (providing access by partial or total removal of various parts of vertebral bone). Discectomy is the surgical removal of herniated disc material that presses on a nerve root or the spinal cord. A laminectomy is often involved to permit access to the intervertebral disc in a traditional discectomy.

Patient Selection: Microdiscectomy for symptomatic lumbar disc herniations in patients with a preponderance of leg pain who have failed nonoperative treatment demonstrated a high success rate based on validated outcome measures (80% decrease in VAS leg pain score of greater than 2 points), patient satisfaction (85%), and return to work (84%). Patients should be encouraged to return to their preinjury activities as soon as possible with no restrictions at 6 weeks. Overall, patients with sequestered lumbar disc herniations fared better than those with extruded herniations, although both groups consistently had better outcomes than patients with contained herniations. Patients with herniations at the L5-S1 level had significantly better outcomes than did those at the L4-L5 level. (Dewing, 2008) Workers' comp back surgery patients are at greater risk for poor lumbar discectomy outcomes than noncompensation patients. (DeBerard, 2008) (DeBerard, 2011) Overweight and obese patients demonstrated an increased risk of postoperative complications after lumbar spine surgery, but these are not associated with a greater risk of mortality. (Marquez-Lara, 2014)

Spinal Stenosis: For patients with lumbar spinal stenosis, standard posterior decompressive laminectomy alone (without discectomy) offers a significant advantage over nonsurgical treatment. Discectomy should be reserved for those conditions of disc herniation causing radiculopathy. (See Indications below.) Laminectomy may be used for spinal stenosis secondary to degenerative processes exhibiting ligament hypertrophy, facet hypertrophy, and disc protrusion, in addition to anatomical derangements of the spinal column such as tumor, trauma, etc. (Weinstein, 2008) (Katz, 2008) A comparison of surgical and nonoperative outcomes between degenerative spondylolisthesis and spinal stenosis patients from the SPORT trial found that fusion was most appropriate for spondylolisthesis, with or without listhesis, and decompressive laminectomy alone most appropriate for spinal stenosis. (Pearson, 2010) See also Laminectomy.

The ODG provides the following for microdiscectomy:

Standard discectomy and microdiscectomy are of similar efficacy in treatment of herniated disc. (Bigos, 1999) Discectomy is surgery to remove lumbar disc material that is pressing on a nerve root or the spinal cord. It may be performed as microdiscectomy, using a microscope to view the disc and nerves, allowing use of a smaller incision. See Discectomy/ laminectomy for more information and references, and Criteria for use. This is not the same as minimally invasive surgery for discectomy, which is not recommended. For those procedures, see AccuraScope procedure (North American Spine); Laser discectomy; Mild® (minimally invasive lumbar decompression); Percutaneous discectomy (PCD); Percutaneous endoscopic laser discectomy (PELD).

The ODG provides the following for neurophysiological monitoring during surgery:

Recommended during spinal or intracranial surgeries when such procedures have a risk of significant complications that can be detected and prevented through use of neurophysiological monitoring. The following types of intraoperative monitoring may be necessary: somatosensory-evoked potentials, brainstem auditory-evoked potentials, EMG of cranial or spinal nerves, EEG, and electrocorticography (ECOG). Intraoperative EMG and nerve conduction velocity monitoring on peripheral nerves during surgery is not recommended. Intraoperative monitoring is not recommended for intraoperative visual-evoked potentials and motor-evoked potentials. Use of intraoperative SSEP (somatosensory evoked potential) or DSEP (dermatomal sensory evoked potential) monitoring is recommended as an adjunct in those circumstances during instrumented lumbar spinal fusion procedures in which the surgeon desires immediate intraoperative information regarding the potential of a neurological injury.

The occurrence of a postoperative neurological deficit is highly correlated with intraoperative changes in these monitoring modalities. An abnormal SSEP or DSEP during surgery, however, often does not correlate with a postoperative neurological injury because of a high false-positive rate. Use of intraoperative evoked EMG (electromyography) recordings is recommended in those circumstances in which the operating surgeon wishes to confirm the lack of a neurological injury during pedicle screw placement. A normal evoked EMG response is highly predictive of the lack of a neurological injury. An abnormal EMG response during the surgical procedure may or may not be associated with a clinically significant injury. (Resnick, 2005)

Although high-quality evidence supporting the use of monitoring in cervical, thoracic, and lumbar spinal surgeries is lacking, intraoperative neurophysiological monitoring during spine surgery is currently accepted as standard practice for many procedures and should be used at the discretion of the surgeon to improve outcomes of spinal surgery. (Gonzalez, 2009) Intraoperative monitoring of somatosensory evoked potentials and transcranial electrical motor evoked potentials in procedures that involve the spinal cord itself can predict adverse surgical outcomes in complex cases. All studies consistently showed that all occurrences of paraparesis, paraplegia, and quadriplegia were in patients who showed changes in their evoked potentials during surgery, whereas patients with no changes in evoked potentials had none of these adverse outcomes. However, in the majority of routine orthopedic spine procedures (mostly laminectomy, discectomy, or spinal fusion surgeries, procedures that do not actually involve the spinal cord itself but are very close to the spinal cord), the use of monitoring should be at the discretion of the surgeon. (Nuwer, 2012)

Remote monitoring: The monitoring physician should be present in the operating room or have access to neurophysiologic intraoperative monitoring data in real-time from a remote location and be in communication with the staff in the operating room. There are many methods of remote monitoring, however any method used must conform to local and national protected health information guidelines. According to Sentient (Baltimore, Maryland), one of the first providers of remote real-time intraoperative neurophysiological monitoring to augment local monitoring, this monitoring can reduce the risk of adverse neurological outcomes for patients undergoing spine or brain surgeries. (Emerson, 2008) (Edmonds, 2011) (Razumovsky, 2013)

The ODG provides the following for preoperative lab testing:

Recommended as indicated below. Preoperative additional tests are excessively ordered, even for young patients with low surgical risk, with little or no interference in perioperative management.

Criteria for Preoperative lab testing:

Laboratory tests, besides generating high and unnecessary costs, are not good standardized screening instruments for diseases. The decision to order preoperative tests should be guided by the patient's clinical history, comorbidities, and physical examination findings. Preoperative routine tests are appropriate if patients with abnormal tests will have a preoperative modified approach (i.e., new tests ordered, referral to a specialist or surgery postponement). Testing should generally be done to confirm a clinical impression, and tests should affect the course of treatment. (Feely, 2013) (Sousa, 2013)

The ODG provides the following for preoperative general testing:

Preoperative testing (e.g., chest radiography, electrocardiography, laboratory testing, urinalysis) is often performed before surgical procedures. These investigations can be helpful to stratify risk, direct anesthetic choices, and guide postoperative management, but often are obtained because of protocol rather than medical necessity. The decision to order preoperative tests should be guided by the patient's clinical history, comorbidities, and physical examination findings. Patients with signs or symptoms of active cardiovascular disease should be evaluated with appropriate testing, regardless of their preoperative status. Electrocardiography is recommended for patients undergoing high-risk surgery and those undergoing intermediate-risk surgery who have additional risk factors. Patients undergoing low-risk surgery do not require electrocardiography. Chest radiography is reasonable for patients at risk of postoperative pulmonary complications if the results would change perioperative management. Patients in their usual state of health who are undergoing cataract surgery do not require preoperative testing. (Feely, 2013)

Routine preoperative tests are defined as those done in the absence of any specific clinical indication or purpose and typically include a panel of blood tests, urine tests, chest radiography, and an electrocardiogram (ECG). These tests are performed to find latent abnormalities, such as anemia or silent heart disease, that could impact how, when, or whether the planned surgical procedure and concomitant anesthesia are performed. It is unclear whether the benefits accrued from responses to true-positive tests outweigh the harms of false-positive preoperative tests and, if there is a net benefit, how this benefit compares to the resource utilization required for testing. An alternative to routine preoperative testing for the purpose of determining fitness for anesthesia and identifying patients at high risk of postoperative complications may be to conduct a history and physical examination, with selective testing based on the clinician's findings. However, the relative effect on patient and surgical outcomes, as well as resource utilization, of these two approaches is unknown. (AHRQ, 2013) The latest AHRQ comparative effectiveness research on the benefits and harms of routine preoperative testing, concludes that, except for cataract surgery, there is insufficient evidence comparing routine and per-protocol testing. (AHRQ, 2014)

The ODG provides the following for a surgical assistant:

Recommended as an option in more complex surgeries as identified below. An assistant surgeon actively assists the physician performing a surgical procedure. Reimbursement for assistant surgeon services, when reported by the same individual physician or other health care professional, is based on whether the assistant surgeon is a physician or another health care professional acting as the surgical assistant. Only one assistant surgeon for each procedure is a reimbursable service, without exceptions for teaching hospitals or hospital bylaws. The following low back surgical procedure CPT codes are eligible for a surgical assistant: 20930; 20931; 20936; 20937; 20938; 22224; 22226; 22548; 22558; 22585; 22612; 22614; 22630; 22632; 22830; 22840; 22841; 22842; 22843; 22844; 22845; 22846; 22847; 22849; 22850; 22851; 22852; 22855; 63005; 63011; 63012; 63017; 63030; 63035; 63042; 63044; 63047; 63048; 63056; 63057; 63170; 63185; 63190; 63200; 63267; 63268; 63272; 63273; and 69990. (CMS, 2014)

The ODG provides the following for a post-operative back brace:

Under study, but given the lack of evidence supporting the use of these devices, a standard brace would be preferred over a custom post-op brace, if any, depending on the experience and expertise of the treating physician.

There is conflicting evidence, so case by case recommendations are necessary (few studies though lack of harm and standard of care). There is no scientific information on the benefit of bracing for improving fusion rates or clinical outcomes following instrumented lumbar fusion for degenerative disease. Although there is a lack of data on outcomes, there may be a tradition in spine surgery of using a brace post-fusion, but this tradition may be based on logic that antedated internal fixation, which now makes the use of a brace questionable. For long bone fractures, prolonged immobilization may result in debilitation and stiffness; if the same principles apply to uncomplicated spinal fusion with instrumentation, it may be that the immobilization is actually harmful. Mobilization after instrumented fusion is logically better for health of adjacent segments, and routine use of back braces is harmful to this principle. There may be special circumstances (multilevel cervical fusion, thoracolumbar unstable fusion, non-instrumented fusion, mid-lumbar fractures, etc.) in which some external immobilization might be desirable. (Resnick, 2005)

Claimant/Petitioner testified concerning the mechanism of injury and his course of treatment; however, a qualified expert medical opinion with reference to evidence-based medicine was necessary for Claimant/Petitioner to meet his burden of proof on this matter and such evidence-based medical evidence was lacking in this case. As such, insufficient evidence-based medical evidence existed to explain that the requested surgery was health care reasonably required for the compensable injury. Therefore, the preponderance of the evidence is not contrary to the decision of the IRO that Claimant/Petitioner is not entitled to the requested treatment.

The Administrative Law Judge considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.

FINDINGS OF FACT

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.
    1. On (Date of Injury), Claimant was the employee of (Employer), Employer.
    2. On (Date of Injury), Employer provided workers’ compensation insurance through Hartford Casualty Insurance Company, Insurance Carrier.
    3. On (Date of Injury), Claimant sustained a compensable injury.
    4. Insurance Carrier/Respondent delivered to Claimant/Petitioner a single document stating the true corporate name of Insurance Carrier/Respondent, and the name and street address of Insurance Carrier/Respondent’s registered agent, which document was admitted into evidence as Administrative Law Judge’s Exhibit Number 2.
  2. The IRO decision is dated September 16, 2019.
  3. Claimant/Petitioner’s appeal of the IRO decision was filed on October 21, 2019, not within the 20-day deadline contained in 28 TAC §133.308(s)(1)(A).
  4. The microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant are not 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 not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant.
  4. Claimant/Petitioner did not timely appeal the IRO decision.

DECISION

The preponderance of the evidence is not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant. Claimant/Petitioner did not timely appeal the IRO decision.

ORDER

Insurance Carrier/Respondent is not liable for the benefits at issue in this hearing. Claimant/Petitioner remains entitled to medical benefits for the compensable injury in accordance with Labor Code §408.021.

The true corporate name of the insurance carrier is HARTFORD CASUALTY INSURANCE COMPANY, and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136

Signed this 30th day of December, 2019.

Kara Squier
Administrative Law Judge

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation (DWC). For the reasons discussed herein, the Administrative Law Judge (ALJ) determines that:

Claimant is not entitled to a right shoulder MRI without contrast for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On December 12, 2019, Warren E. Hancock, Jr., a DWC administrative law judge, held a contested case hearing to decide the following disputed issues:

  1. Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that Claimant is not entitled to an MRI without contrast for the right shoulder for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Claimant appeared and was assisted by EE, ombudsman. Self-Insured appeared and was represented by AS, attorney. The Employer representative was SM.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant.

For Self-Insured: None.

The following exhibits were admitted into evidence:

ALJ’s Exhibits: ALJ-1 and ALJ-2.

Claimant’s Exhibits: None.

Self-Insured’s Exhibits: CR-A through CR-E.

DISCUSSION

Claimant is a (Age)-year-old teacher who was injured on (Date of Injury) when she was holding a door open for a student who jumped up and hit Claimant’s right arm as the student passed underneath. Claimant testified she felt 3 “pops” in her shoulder with onset of excruciating pain. Claimant waited a week to seek medical attention thinking she would improve. She was seen by BD, M.D. who ordered an MR Arthrogram which was done on March 6, 2019. This study was interpreted as showing no evidence of a full-thickness rotator cuff tear but with fluid in the subdeltoid bursa. A right shoulder X-ray on June 12, 2019 showed no fracture or dislocation, and normal alignment of the shoulder. Claimant has had medications, physical therapy and a shoulder injection.

Claimant continued to have right shoulder pain and began treating with DN, M.D., an orthopedic surgeon, on July 15, 2019. Dr. N requested an MRI of the right shoulder without contrast. This treatment was denied by BB, M.D., a physical medicine specialist who reviewed the request as utilization reviewer for Self-Insured on August 1, 2019. He stated that this would be considered a repeat MRI and there was no indication of a significant change in symptoms. A reconsideration review was done by BA, M.D., an orthopedic surgeon on August 15, 2019. He also recommended denial of the requested MRI without contrast, stating that the ODG recommends an MRI where there is suspicion of a rotator cuff disorder with initial radiographs which are normal or inconclusive. He pointed out that a repeat MRI is only indicated according to the Official Disability Guides (ODG) where there are new symptoms or a significant change in symptoms indicative of new pathology. He stated that the repeat MRI was sought in this case due to continued pain despite conservative treatment, but no new symptoms or change in symptoms was shown. On September 25, 2019, the case was reviewed by an orthopedic surgeon as part of an IRO review, who upheld the denial of the requested test. He explained that Claimant has had an MR Arthrogram of the right shoulder which is the definitive study for rotator cuff tear which is more sensitive than an MRI without contrast. For a repeat MRI such as that requested in this case, the ODG requires a substantial change in symptoms and/or clinical findings suggestive of new pathology. He stated that the medical records in this case do not identify any substantial change in symptoms or findings suggestive of new pathology.

With regard to MRI, the ODG states as follows:

Non-contrast magnetic resonance imaging (MRI) is effective for assessing bony morphology and bone loss with traumatic shoulder injuries, and for assessment of most traumatic soft tissue pathologies including labral, rotator cuff, and glenohumeral ligament injuries. MR arthrography (MRA) is considered the gold standard for imaging traumatic shoulder pain and while comparable to non-contrast MRI for extra-articular soft tissues, MRA is superior for intra-articular pathology like SLAP tears, labro-ligamentous injuries, and partial rotator cuff tears. MRA is comparable to CT for evaluation of traumatic osseous lesions, such as bony Bankart and Hill-Sachs defects. For non-localized shoulder pain with negative radiographs, MRI without IV contrast is indicated. When Bankart or Hill-Sachs lesions are detected on radiographs, MRI without IV contrast or MRA are both good studies for assessing labro-ligamentous injuries. Either MRI or MRA are also appropriate for a suspected dislocation event or instability when radiographs are normal. For evaluation of labral tears with normal radiographs either MRA, CT arthrography (CTA), or MRI without IV contrast can be used. For suspected rotator cuff tears with normal radiographs, MRI without IV contrast, MRA, or ultrasound (US) are appropriate studies. (ACR, 2017)

Given its excellent depiction of soft-tissue structures, MRI is also considered the gold standard for evaluation of the glenoid labrum and rotator cuff, and MRA further increases diagnostic sensitivity and specificity. MRI is well tolerated and involves no ionizing radiation. Either MRI without IV contrast or US should be performed when rotator cuff abnormalities, bursitis, or biceps tendon abnormalities are suspected and radiographs are normal or inconclusive. Either MRA or MRI without IV contrast should be performed when instability and labral tears are suspected with normal or inconclusive radiographs. Either MRA, MRI without IV contrast, or US should be performed for shoulder pain after rotator cuff repair when radiographs are normal or inconclusive. MRI without IV contrast should be performed when adhesive capsulitis is suspected or for neurogenic shoulder pain (excluding plexopathy) when initial radiographs are normal or inconclusive. (ACR, 2018) MRI has inherently higher tissue-contrast resolution than CT and is superior for assessing soft-tissue abnormalities following shoulder arthroplasty. Evolving MRI methods with improved image quality and metal artifact reduction make it a more feasible technique for evaluation of component loosening, rotator cuff tear, infection, or hemiarthroplasty glenoid cartilage wear. (ACR, 2016)

Ultrasonography and MRI have comparably high accuracy for identifying biceps pathologies and rotator cuff tears, so the choice should be based on the clinical situation, cost, and available imaging experience. (Ardic, 2006) MRI is particularly useful for evaluation of shoulder pain due to subacromial impingement and rotator cuff disease, showing bursal inflammatory changes, structural impingement, and secondary tendinopathy including partial- and full-thickness rotator cuff tears. However, overall prevalence of rotator cuff tears on MRI is 34% in asymptomatic patients of all age groups (15% full-thickness, 20% partial-thickness). (Hambly, 2007) Primary care physicians make a significant number of inappropriate referrals for CT and MRI, as high as 37% for shoulder MRI, mostly for patients with no history of trauma or with documented osteoarthritis on plain-films. (Lehnert, 2010)Non-contrast MRI is sufficient for most conditions including rotator cuff tears, but contrast enhancement is often recommended for SLAP tears. In the past when MRI images and sensitivity were poor, additional injection of contrast into the shoulder joint improved interpretation, but this has become less necessary with modern high field magnets. (Spencer, 2013) (Farshad-Amacker, 2013) (Arnold, 2012) MR arthrography continues to be an option to better detect labral tears and for suspected re-tear of rotator cuff repairs. (Murray, 2009)

Repeat MRI is not routinely recommended, and should be reserved for a significant change in symptoms and/or findings suggestive of significant new pathology. (Mays, 2008)

Claimant did not present evidence-based medical evidence at the hearing showing either that Claimant meets the requirements of the ODG for the requested MRI without contrast, or that there is other evidence-based medical evidence which outweighs the ODG in this regard. Accordingly, Claimant failed to meet her burden of showing that the preponderance of the evidence is contrary to the determination of the IRO in this case.

The Administrative Law Judge considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.

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. On (Date of Injury), Employer provided workers’ compensation coverage through self-insurance.
    4. Claimant sustained a compensable injury on (Date of Injury) in the form of at least the Self-Insured-accepted condition of right shoulder sprain.
    5. Treatment for Claimant’s compensable injury is not covered by a Workers’ Compensation Healthcare Network.
    6. The IRO determined that a right shoulder MRI without contrast is not healthcare reasonably required for the compensable injury of (Date of Injury).
  2. Self-Insured delivered to Claimant a single document stating the true corporate name of Self-Insured, and the name and street address of Self-Insured’s registered agent, which document was admitted into evidence as Administrative Law Judge’s Exhibit Number 2.
  3. A right shoulder MRI without contrast is not healthcare 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. Claimant is not entitled to a right shoulder MRI without contrast for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to a right shoulder MRI without contrast for the compensable injury of (Date of Injury).

ORDER

Self-Insured is not liable for the benefits at issue in this hearing, and it is so ordered. Claimant remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code §408.021.

The true corporate name of the Self-Insured is (EMPLOYER), and the name and address of its registered agent for service of process is

(NAME)(EMPLOYER)(ADDRESS)

Signed this 12th day of December, 2019.

Warren E. Hancock, Jr.
Administrative Law Judge

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 (DWC) adopted thereunder. For the reasons discussed herein, the Administrative Law Judge (ALJ) determines that:

Claimant is not entitled to the requested authorization for left shoulder total arthroplasty revision, removal of glenosphere & humeral component, removal of superior screws with inpatient days.

ISSUES

A contested case hearing was held on November 12, 2019, with the record closing on December 6, 2019, to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that an authorization & coverage for left shoulder total arthroplasty revision, removal of glenosphere & humeral component, removal of superior screws with inpatient days is not reasonably required health care for the compensable injury of (Date of Injury)?

Upon agreement of the parties the issue was revised to:

Is the preponderance of the evidence contrary to the decision of the IRO that an authorization for left shoulder total arthroplasty revision, removal of glenosphere & humeral component, removal of superior screws with inpatient days is not reasonably required health care for the compensable injury of (Date of Injury)?

The record was held open for submission of legal authorities and to resolve an issue regarding the name of Employer. The record was closed on December 6, 2019.

PARTIES PRESENT

Petitioner/Claimant (Claimant) was present, and assisted by MG, ombudsman. Respondent/Carrier (Carrier) appeared and was represented by RG, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: (Claimant).

For Carrier: None.

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibits: ALJ-1 and ALJ-2.

Claimant’s Exhibits: C-1 through C-14.

Carrier’s Exhibits: CR-A through CR-J.

BACKGROUND INFORMATION

On (Date of Injury), while working for Employer, Claimant climbed a ladder on a pole to fix an electrical line and the pole broke. Claimant fell approximately 18 feet and sustained a compensable injury to his left shoulder.

Claimant underwent four surgeries. On July 14, 2016, the operative records indicate a procedure of an intramedullary nailing of the left humeral shaft fracture using a Synthes antegrade humeral nail. On January 1, 2017, the procedure performed was a left midshaft humerus open reduction and internal fixation of nonunion; left shoulder removal of retained hardware; and left shoulder bone grafting using right autogenous iliac crest bone graft. On June 21, 2017, the procedure performed was a left shoulder examination under anesthesia, left shoulder complex total shoulder arthroplasty using reverse prosthesis, left shoulder open removal of retained foreign body, left shoulder open subdeltoid inferior capsular contracture release and left shoulder open biceps tenodesis. On August 9, 2017, the procedures performed were a left shoulder examination under anesthesia, left shoulder revision of humeral component of reverse prosthesis, and left shoulder open subdeltoid contracture release.

On January 8, 2019, Claimant underwent a suprascapular nerve block. On February 18, 2019, Dr. TE, Claimant’s surgeon, noted that Claimant had good relief for the first week after the nerve block and then the pain started to return. The report of the nerve block procedure noted findings of a CT visualization of the suprascapular notch which showed possible encroachment by the hardware screws. Blockade of the suprascapular nerve produced a complete relief of Claimant’s shoulder pain.

The medical records in evidence show that on February 18, 2019, Claimant complained of left scapular pain and was diagnosed with subscapular neuralgia. On April 2, 2019, Claimant visited Dr. E who diagnosed Claimant with supra-scapular neuropathy, irreparable rotator cuff tear, and shoulder area pain-etiology unknown.

Dr. GG examined Claimant on May 15, 2019, and wrote that Claimant had persistent pain in the shoulder and that he had had a suprascapular nerve block and had 80% relief in the pain.

Dr. E’s records noted that on June 25, 2019, Claimant desired surgery to remove the glenosphere component, humeral component and take the superior three screws out. Dr. E requested approval of a left shoulder total arthroplasty revision, removal of glenosphere and humeral component, and removal of superior screws with inpatient days.

With a complete date of July 1, 2019, Carrier notified Dr. E of an “adverse determination.” The notice indicated the clinical basis of the denial was unsuccessful peer to peer discussion, and that Official Disability Guidelines (ODG) provided that reverse shoulder arthroplasty may be performed for patients who have failed prior surgical procedures, as well as those who have irreparable rotator cuff tears and intractable pain despite prior conservative management. The ODG also provides that hardware removal is not recommended for routine use but may be recommended for broken hardware, exposed pins, or persistent pain. The notice then stated that the guideline criteria have not been met. The notice continued that, although the patient [Claimant] did have severely restricted range of motion there was no official MRI report submitted for review to confirm the need for revision surgery, there were no official x-ray reports provided, and the provider further noted that x-rays revealed implants were in a good position, and as implants were in a good position there is no evidence of broken hardware, the need for surgery was not established. The reviewer also noted a specific number of inpatient days was not requested and concluded that the requested procedures is not certified.

The denial was appealed and on a complete date of July 10, 2019, Carrier sent an “Appeal Request Denial.” JH MD, an orthopedic surgeon, was the reviewer for the appeal. Dr. H repeated much of the same rationale from the utilization review agent. He noted a peer to peer discussion was not established and he quoted the ODG guidelines for reverse shoulder arthroplasty. He then noted that there continued to be no MRI submitted or documented to confirm the need for revision surgery and that the most recent x-rays indicated the implants were in a good position with no indication of broken hardware. He also noted that no specific number of inpatient days were requested. Finally, he noted that no additional documentation was provided for the review to overturn the prior determination.

Claimant requested an IRO review and DWC appointed Maximus Federal Services Inc. as the Independent Review Organization. The reviewer was a medical doctor., Board Certified in orthopedic surgery. The date of the review was July 20, 2019, and the Reviewer’s report was provided to all parties indicating that the previous adverse determinations should be upheld.

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 (22-a) 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 (18-a) 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. 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(s),

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.

The ODG for the requested procedures indicates the following:

ODG Indications for Surgery™ -- Reverse Shoulder Arthroplasty:

Technical considerations include concepts of newer implant designs incorporating lateral offset, 135 degree humeral cup inclination, and larger glenosphere, with or without bone cement.

Hardware implant removal:

Not recommend the routine removal of hardware implanted for fracture fixation, except in the case of broken hardware or persistent pain, after ruling out other causes of pain such as infection and nonunion. Not recommended solely to protect against allergy, carcinogenesis, or metal detection. Although hardware removal is commonly done, it should not be considered a routine procedure. For more information & references,

Risk versus benefit:

Risk versus benefit: Overall complication rates were 25% (5% major) after primary RSA and 69% after revision RSA. (Saltzman, 2014) RSA compared with TSA patients, had significantly longer length of stay, higher hospital charges that are not completely attributable to increased implant costs alone, and increased rates of perioperative complications. (Jiang, 2014) Early RSA revision has been associated with age less than 65, smoking and obesity, with dislocation being the most common reason. (Werner, 2015) Young age, high pre-operative function, and neurologic dysfunction were associated with poor functional improvement after RSA for massive rotator cuff tears without arthritis. (Hartzler, 2015) Due to higher surgical risks for these more complex conditions, RSA should be carefully considered for strict indications only. Compared to other total joint arthroplasties there is reported to be a steep surgical learning curve as well as relatively poor revision options.

Reverse shoulder arthroplasty (RSA) is most often used for individuals who have shoulder arthritis coupled with an irreparable rotator cuff tear, as well as for very complex shoulder problems including failed previous surgeries. This relatively newer shoulder replacement was initially developed in Europe in the 1980s and then FDA-approved in 2004. The procedure involves insertion of a hemispherical implant into the glenoid and a cup component applied to the humerus, allowing the arm to be more effectively moved by the deltoid instead of the rotator cuff. Initial results were encouraging, but not all shoulder surgeons have gained experience with RSA. The prostheses were originally designed for rotator cuff arthropathy, providing reasonably good results. Over time, indications expanded to include irreparable rotator cuff tears, complex fractures, and rheumatoid arthritis, with results being more variable. There are also fundamental design differences between the original Delta III and later developed RSA prostheses, and there are many studies that simply do not consider these 2 devices separately. (Khan, 2011)

A systematic review (SR) of 35 RSA studies and 2049 patients showed that lateralized prostheses resulted in 18 degrees better external rotation than medialized components. The primary indication for RSA--cuff tear arthropathy--showed more improvement in range-of-motion than other indications, including anatomic prosthetic revision, failed cuff repair, or fracture sequelae. There was high patient satisfaction regardless of indications or prosthetic design. (Samitier, 2015) A related SR of 37 studies and 3150 RSA patients reported that lateralized prostheses had significantly higher glenoid loosening and need for revision than medial, although scapular notching was lower. RSA revision of an anatomic prosthesis had higher risks of reoperation, revision, hematoma, instability, and infection than for other indications. (Alentorn-Geli, 2015) Another SR of 13 RSA studies reported 22 degrees better external rotation and less scapular notching with a lateralized design, but with 7% higher glenoid baseplate loosening than with traditional (medialized). (Lawrence, 2016) A retrospective database review of revision surgeries for lateralized implants reported a 6% overall revision rate (85/1418 patients), but glenoid baseplate failure dropped from 2.5% to 0.3% following newer baseplate modifications. (Stephens, 2016) Another technical consideration, the effect of 135 vs. 155 degree humeral cup inclination was shown in an SR of 65 studies and 3302 patients to result in significantly more external rotation for the 135 degree group, although other motions were similar. (Erickson, 2016) An SR of 41 RSA studies including 1455 cemented and 329 uncemented humeral stems demonstrates equivalent functional outcomes with fewer complications with uncemented, although there are some concerns regarding radiolucent lines and early stem migration. (Phadnis, 2016)

Rotator cuff tears with and without arthropathy: When highly symptomatic large and massive rotator cuff tears can be repaired, they should be. A cost-effectiveness analysis of the U.S. healthcare system determined that both arthroscopic rotator cuff repair and RSA were superior to non-operative care, with incremental cost-effectiveness ratio (ICER)/quality-adjusted life year (QALY) of $15,500/QALY and $37,400/QALY respectively. Arthroscopic cuff repair remains the preferred initial treatment strategy, despite moderately high rates of re-tearing, due to lower costs and slightly better overall clinical outcomes for the majority of patients. (Makhni, 2016) Another cost-effectiveness study of arthroscopic cuff repair for massive rotator cuff tears with pseudo-paralysis but minimal arthritis concluded the same--that arthroscopic repair was favored, with RSA conversion being best used for potential failures, regardless of age. (Dornan, 2017)

For irreparable massive rotator cuff tears, several treatments offer reasonable probabilities for improvement. A cost-effectiveness study showed that physical therapy alone was the most cost-effective with fairly good results (QALY 7.35). For patients seeking further pain relief without functional gains, arthroscopic debridement/biceps tenotomy has a short recovery and is cost-effective. Failing therapy, pain relief and improved function are the potential benefits of RSA, but with moderate risk of complications (QALY 7.69, cost $23,820). (Kang, 2017) An SR of 6 studies and 266 shoulders with irreparable massive rotator cuff tears without osteoarthritis demonstrated a high probability of painless functional improvements following RSA. (Sevivas, 2017)

An SR of 7 studies, lacking prospective randomized trials, of rotator cuff tear arthropathy patients showed that RSA restored pain-free range-of-motion and improved function, but a 17.4% complication rate was noted, mostly heterotopic ossification (6.6%), and revision was needed for 7.3%. (Petrillo, 2017)

Rheumatoid arthritis: 2 SRs have shown that RSA for patients with RA have similar short to medium-term results without higher complications when compared to non-RA massive cuff tears with or without arthropathy. Both studies had 2-year follow-up and resulted in mean active forward flexion of about 125 degrees, abduction 117 degrees, and external rotation 26 degrees. Scapular notching occurred in one/third and complications were reported in 22-31% (mostly minor fracture or infection); and revision was required for 7-9%. (Cho, 2017) (Postacchini, 2016)

Comminuted proximal humerus fractures: RSA is now a reasonable option for surgeons who are highly familiar with the technique for optimum treatment of complex proximal humeral fractures (PHF). (Frombach, 2017) In the past, moderate-high quality evidence indicated that compared with non-surgical treatment, surgery did not result in better outcomes for displaced PHFs. (Handoll, 2015)

While displaced PHFs were historically often treated with hemiarthroplasty (HA) in older adults, this frequently resulted in poor functional outcomes due in-part to associated rotator cuff deficiency. RSA potentially offers improved results for these difficult-to-treat situations. An SR indicates that RSA allows improved forward flexion and functional scores compared with HA for older adults with PHFs. Complications following surgery do not appear to be appreciably higher for RSA, making it a reasonable alternative for treating older adults. (Mata-Fink, 2013) RSA is steadily being used more for acute displaced PHFs. Pain and motion results appear to be significantly better than for HA. Quality healing rates were only 37% for an HA cohort compared with 84% for RSA, with the highest rate of complications also occurring with HA. (Baudi, 2014) In contrast, an SR comparing RSA with HA for PHF showed better RSA forward flexion by 10 degrees, worse external rotation by 10 degrees, but comparable clinical outcomes. RSA had a lower revision rate but somewhat higher complications than HA. (Ferrel, 2015) An SR/MA of 8 studies and 581 patients with minimum 1-year follow-up demonstrated a lower rate of complications, higher functional scores, better active forward elevation, and more healed tuberosities with RSA than HA. (Wang, 2016) Another SR of 10 studies and 256 PHF patients (89% female, mean age 76), while acknowledging a lack of RCTs, concluded nonetheless that RSA effectively restores function and relieves pain in older patients where osteoporosis and cuff dysfunction are common. (Longo, 2016) An effectiveness and safety SR/MA analyzing 34 trials and 2165 displaced PHF patients compared 5 interventions (ORIF, HA, RSA, IM nail, non-operative), concluding that RSA had the highest probability for improving functional outcomes, lowering complications, and avoiding further surgery. (Chen, 2016) An MA of 7 RCTs of 3 or 4-part PHFs in the elderly demonstrated that RSA had the highest functional scores and lowest re-operation rate than other treatment options (HA, ORIF, non-operative), with ORIF being the worst. (Du, 2017) Another SR demonstrated that short and mid-term outcomes have progressively improved for RSA for PHF, especially in patients older than 70. (Gigis, 2017) A cost/effectiveness analysis of arthroplasty for complex PHFs showed that the incremental cost-effectiveness ratio (ICER)/quality-adjusted life year (QALY) of $8100/QALY for RSA was much better than $36,700/QALY for HA, further demonstrating superiority for RSA. (Nwachukwu, 2016)

Complications/revisions: Heterotopic ossification (HO) has been reported in up to 30% of RSA patients, although it is usually non-progressive and without long-term clinical consequences. Grade II HO develops in 11% and has some negative effect on shoulder function. (Verhofste, 2016) Revision to RSA for prior instability of anatomic arthroplasties is problematic, especially for failed hemiarthroplasty and/or BMI > 35, in terms of reported one-in-seven recurrent dislocations, which may be improved with larger glenospheres and increased lateral offset. Even so, there is reasonable implant survivorship (79% at 5 years) without more than otherwise expected complications according to an institutional joint registry analysis. (Hernandez, 2017) Of 34 patients with revision for instability following RSA, most commonly related to deltoid dysfunction or acromial fractures, only 21 remained stable at 2 years. (Abdelfattah, 2017) A retrospective study of 41 morbidly obese (BMI > 40) primary RSAs reported only a 5% revision rate at 3 years and implant survival of 92% at 5 years, with good-excellent reported pain relief. (Statz, 2016) An SR of 9 studies of RSA for fracture sequelae (malunion, nonunion) indicated that this procedure has become the arthroplasty of choice with improved motion and function, at the risk of significant complications including dislocation (17%), infection (7%), fracture (3%), and neurological injury (3%). (Holton, 2017) Sometimes RSA results in persistent painful symptoms which can occur from instability, post-operative fracture, peri-prosthetic infection, and aseptic loosening (humeral more common than glenoid) conditions that can require further revision or resection arthroplasty. (Ekelund, 2017).

The IRO reviewer wrote that there was not enough documentation in the records to justify revision shoulder surgery. There is documentation of normal range of motion and radiographs showing acceptable position of the implants. The reviewer concluded that the medical records did not support the need for revision reverse total shoulder surgery at this time and the established ODG criteria were not met.

An October 9, 2019, opinion/letter from Dr. E was admitted in evidence over the objection of Carrier. Carrier contended that because the document was produced after the review had taken place it was not admissible. Carrier’s cited authority of MCCH docket No. M6-08-10212-01 is not applicable because in that case, the offer was for proof of exhaustion of conservative care events that took place after the review. Dr. E’s statement was not about events or conditions that occurred after the review. Moreover, Dr. E’s statement was a summary or reference to other medical records that were in evidence. Dr. E’s opinion/letter repeated his recommended procedures and noted a CT visualization that shows possible encroachment by the screws and reference of a block of the suprascapular nerve that produced complete relief of the patient’s shoulder pain temporarily. Dr. E did not persuasively explain Claimant’s need for surgery or the evidence-based medical evidence supporting his recommendation. Dr. E was not persuasive that Claimant met all of the ODG criteria for the requested procedures.

Based on the evidence presented, Claimant did not meet his burden of proof to overcome the decision of the IRO by a preponderance of evidence-based medical evidence. Claimant’s evidence presented the recommendation of his surgeon for the proposed surgical procedures; however, Claimant did not present persuasive evidence-based medical evidence to support his position. As a preponderance of the evidence is found not to be contrary to the decision of the IRO that the requested authorization for left shoulder total arthroplasty revision, removal of glenosphere & humeral component, removal of superior screws with inpatient days is not reasonably required health care for the compensable injury of (Date of Injury), Claimant is held not to be entitled to those procedures.

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. The Texas Department of Insurance, Division of Workers’ Compensation has jurisdiction to hear this matter.
    2. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
    3. On (Date of Injury), Claimant was the employee of (Employer), Employer.
    4. On (Date of Injury), Employer provided workers’ compensation insurance coverage through Indemnity Insurance Company of North America, Carrier.
    5. On (Date of Injury), Claimant sustained a compensable injury.
    6. Maximus Federal Services Inc. has been certified as an independent review organization and the Texas Department of Insurance has assigned Maximus Federal Services Inc. to this case as the Independent Review Organization (IRO).
    7. The IRO upheld the URA denial of preauthorization for left shoulder total arthroplasty revision, removal of Glenoshpere & Humeral Component, removal of superior screws with inpatient days-CPT 23474, 23020, 23333.
    8. The IRO upheld the URA denial of preauthorization for left shoulder total arthroplasty revision, removal of Glenoshpere & Humeral Component, removal of superior screws with inpatient days- CPT 23474, 23020, 23333.
  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 Administrative Law Judge’s Exhibit Number 2.
  3. The preponderance of the evidence-based medical evidence is not contrary to the decision of the Independent Review Organization that Claimant is not entitled to the requested authorization for left shoulder total arthroplasty revision, removal of glenosphere & humeral component, removal of superior screws with inpatient days and is not reasonably required health care 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. Claimant is not entitled to the requested authorization for left shoulder total arthroplasty revision, removal of glenosphere & humeral component, removal of superior screws with inpatient days.

DECISION

Claimant is not entitled to the requested authorization for left shoulder total arthroplasty revision, removal of glenosphere & humeral component, removal of Superior screws with inpatient days.

ORDER

Carrier is not liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code Section 408.021.

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

C T CORPORATION SYSTEM
1999 BRYAN STREET SUITE 900
DALLAS TX 75201-3136

Signed this 9th day of December, 2019.

Christopher M. Maisel
Administrative Law Judge

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 (DWC) adopted thereunder. For the reasons discussed herein, the Administrative Law Judge determines that diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration are not health care reasonably required for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

A contested case hearing was held on November 4, 2019 by a Division administrative law judge, Francisca N. Okonkwo, to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration for the (Date of Injury) compensable injury?

PARTIES PRESENT

Claimant appeared and was represented by LT, attorney. Carrier appeared and was represented by GS, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For the Claimant: (Claimant).

For Carrier: None.

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibits ALJ-1 through ALJ-5.

Claimant’s Exhibits C-1 through C-8.

Carrier’s Exhibits CR-A and CR-D.

DISCUSSION

On (Date of Injury), Claimant, a crane operator for Employer, fell off his crane while cleaning the front windshield. He sustained fractures of the left lateral 7th and 8th ribs, facial abrasions, concussion, post-concussion syndrome, traumatic brain injury, and depression as a result of the work injury. In an effort to determine when Claimant reached maximum medical improvement (MMI) and to assess his impairment rating (IR), DWC appointed ZK, MD, as designated doctor (DD). Dr. K examined Claimant on December 13, 2018 and referred him to Psychologist, SB, PhD, for psychological evaluation. Dr. B performed a psychological interview and neuropsychological testing, which included 16 total hours of interview, test administration, scoring, interpretation, research, review of records and her opinion regarding MMI and IR, to produce a comprehensive 49-page report.

Insurance Carrier-selected required medical examination (RME) doctor, AB, MD, examined Claimant on April 16, 2019 to determine when he reached MMI and to assign an IR. Dr. B also performed a neuropsychological evaluation and diagnostic testing and provided his report. The contested case hearing on the issues of MMI and IR is pending.

Claimant sought to obtain his own alternate comprehensive psychological evaluation with GB and Associates, which was denied by Carrier, then denied by Utilization Review. Claimant contends that this additional testing is reasonable and necessary in order to determine the date of MMI and to assess an accurate IR and that the AMA Guides to the Evaluation of Permanent Impairment allows for it. Claimant disagrees with the Independent Review Organization (IRO) decision which upheld Carrier's denial of the additional diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration requested for Claimant’s (Date of Injury) compensable injury.

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. 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(s), "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.”

With regard to diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration the ODG lists the following criteria:

Psychological evaluations are generally accepted, well-established diagnostic procedures not only with selected use in pain problems, but also with more widespread use in subacute and chronic pain populations. Diagnostic evaluations should distinguish between conditions that are preexisting, aggravated by the current injury or work related. Psychosocial evaluations should determine if further psychosocial interventions are indicated. The interpretations of the evaluation should provide clinicians with a better understanding of the patient in their social environment, thus allowing for more effective rehabilitation. (Main-BMJ, 2002) (Colorado, 2002) (Gatchel, 1995) (Gatchel, 1999) (Gatchel, 2004) (Gatchel, 2005)

For the evaluation and prediction of patients who have a high likelihood of developing chronic pain, a study of patients who were administered a standard battery psychological assessment test found that there is a psychosocial disability variable that is associated with those injured workers who are likely to develop chronic disability problems. (Gatchel, 1999) Childhood abuse and other past traumatic events were also found to be predictors of chronic pain patients. (Goldberg, 1999) Another trial found that it appears to be feasible to identify patients with high levels of risk of chronic pain and to subsequently lower the risk for work disability by administering a cognitive-behavioral intervention focusing on psychological aspects of the pain problem. (Linton, 2002) Other studies and reviews support these theories. (Perez, 2001) (Pulliam, 2001) (Severeijns, 2001) (Sommer, 1998) In a large RCT the benefits of improved depression care (antidepressant medications and/or psychotherapy) extended beyond reduced depressive symptoms and included decreased pain as well as improved functional status. (Lin-JAMA, 2003)

See "Psychological Tests Commonly Used in the Assessment of Chronic Pain Patients" from the Colorado Division of Workers’ Compensation, which describes and evaluates the following 26 tests: (1) BHI 2nd ed - Battery for Health Improvement, (2) MBHI - Millon Behavioral Health Inventory [has been superseded by the MBMD following, which should be administered instead], (3) MBMD - Millon Behavioral Medical Diagnostic, (4) PAB - Pain Assessment Battery, (5) MCMI-111 - Millon Clinical Multiaxial Inventory, (6) MMPI-2 - Minnesota Inventory, (7) PAI - Personality Assessment Inventory, (8) BBHI 2 - Brief Battery for Health Improvement, (9) MPI - Multidimensional Pain Inventory, (10) P-3 - Pain Patient Profile, (11) Pain Presentation Inventory, (12) PRIME-MD - Primary Care Evaluation for Mental Disorders, (13) PHQ - Patient Health Questionnaire, (14) SF 36, (15) SIP - Sickness Impact Profile, (16) BSI - Brief Symptom Inventory, (17) BSI 18 - Brief Symptom Inventory, (18) SCL-90 - Symptom Checklist, (19) BDI–II - Beck Depression Inventory, (20) CES-D - Center for Epidemiological Studies Depression Scale, (21) PDS - Post Traumatic Stress Diagnostic Scale, (22) Zung Depression Inventory, (23) MPQ - McGill Pain Questionnaire, (24) MPQ-SF - McGill Pain Questionnaire Short Form, (25) Oswestry Disability Questionnaire, (26) Visual Analogue Pain Scale – VAS. (Bruns, 2001) Chronic pain may harm the brain, based on using functional magnetic resonance imaging (fMRI), whereby investigators found individuals with chronic back pain (CBP) had alterations in the functional connectivity of their cortical regions - areas of the brain that are unrelated to pain - compared with healthy controls. Conditions such as depression, anxiety, sleep disturbances, and decision-making difficulties, which affect the quality of life of chronic pain patients as much as the pain itself, may be directly related to altered brain function as a result of chronic pain. (Baliki, 2008) Maladjusted childhood behavior is associated with the likelihood of chronic widespread pain in adulthood. (Pang, 2010) Psychosocial factors may predict persistent pain after acute orthopedic trauma, according to a recent study. The early identification of those at risk of ongoing pain is of importance for injured workers and compensation systems. Significant independent predictors of pain outcomes were high levels of initial pain, external attributions of responsibility for the injury, and psychological distress. Pain-related work disability was also significantly predicted by poor recovery expectations, and pain severity was significantly predicted by being injured at work. (Clay, 2010)

The Utilization Review doctor found that based on the clinical information provided, the request for diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration is not recommended as medically necessary. The submitted clinical records indicate that the request was reviewed and denied on April 11, 2019 due to very limited information being available. It is reported that Dr. GB has not yet met Claimant but noted that that Claimant has a history of significant head injury and he believes Claimant will need comprehensive neurological testing and evaluation. Dr. B has agreed to see Claimant and has requested an appeal. However, no new clinical information was submitted. No supporting documentation was provided. Therefore, medical necessity was not established in accordance with current evidence-based guidelines.

Claimant’s testimony was considered. The medical records in evidence were also considered. However, the medical evidence presented was not sufficient to meet Claimant’s burden of proof. Claimant has not shown by a preponderance of evidence-based medical evidence that the requested additional psychological testing is health care reasonably required for the compensable 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. The Texas Department of Insurance, Division of Workers’ Compensation has jurisdiction in this matter.
    2. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
    3. On (Date of Injury), Claimant was the employee of (Employer), Employer.
    4. On (Date of Injury), Employer provided worker’s compensation insurance through Insurance Company of the State of Pennsylvania, Carrier.
    5. Claimant sustained a compensable injury in the form of fractures of the left lateral 7th and 8th ribs, facial abrasions, concussion, post-concussion syndrome, traumatic brain injury, and depression on (Date of Injury).
    6. The Independent Review Organization determined that claimant should not have diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration
  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 Administrative Law Judge’s Exhibit Number 2.
  3. Diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration are not 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 not contrary to the decision of the IRO that diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration are not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Diagnostic interview, 1 hour of psychological testing evaluation, 2 hours of additional psychological testing, and 3 units of psychological test administration are not health care reasonably required for the compensable injury of (Date of Injury).

ORDER

Carrier is not liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with Section 408.021.

The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218

Signed this 13th day of November, 2019.

FRANCISCA N. OKONKWO
Administrative Law Judge

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. In accordance with the parties’ agreement, the Administrative Law Judge determines that Claimant is entitled to deep hardware removal and removal of support implant for the (Date of Injury), compensable injury.

STATEMENT OF THE CASE

On November 7, 2019, Kara Squier, a Division administrative law judge, held a contested case hearing to decide the following disputed issue:

Is Claimant entitled to deep hardware removal and removal of support implant for the (Date of Injury), compensable injury?

PARTIES PRESENT

Claimant/Petitioner appeared and was assisted by DC, ombudsman. Insurance Carrier/Respondent appeared and was represented by WS, attorney.

AGREEMENT

The parties reached an agreement. The agreement resolves only those issues to be decided at this hearing. The agreement does not resolve all issues with regard to this claim and is not a settlement.

In this decision, this Agreement section includes findings of fact and the Decision section constitutes the conclusions of law.

The Administrative Law Judge found the following fact:

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

The parties agreed as follows:

  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. On (Date of Injury), Employer provided workers’ compensation insurance through Indemnity Insurance Company of North America, Insurance Carrier.
  4. On (Date of Injury), Claimant sustained a compensable injury.
  5. Claimant is entitled to deep hardware removal and removal of support implant for the (Date of Injury), compensable injury.

DECISION

Claimant is entitled to deep hardware removal and removal of support implant for the (Date of Injury), compensable injury.

ORDER

Insurance Carrier/Respondent is ordered to pay benefits in accordance with this decision, the Texas Workers’ Compensation Act, and the Commissioner’s Rules. Accrued but unpaid income benefits, if any, shall be paid in a lump sum together with interest as provided by law.

The true corporate name of the Insurance Carrier/Respondent is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TX 75201-3136

Signed this 7th day of November, 2019.

Kara Squier
Administrative Law Judge

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Administrative Law Judge determines that a purchase of binaural Phonak Audeo Marvel 90 rechargeable with TV connector, drying capsules, power pack, dry briks, dry and store, wax guards, and domes is health care reasonably required for the compensable injury of (Date of Injury).

ISSUES

On October 15, 2019, Judy Ney, a Division administrative law judge, held a contested case hearing to decide the following disputed issues:

Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant is not entitled to a purchase of binaural Phonak Audeo Marvel 90 rechargeable with TV connector, drying capsules, power pack, dry briks, dry and store, wax guards, and domes for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Claimant appeared and was assisted by JM, ombudsman. Petitioner appeared telephonically for part of the CCH and represented himself. Carrier/Respondent appeared and was represented by JM, attorney.

BACKGROUND INFORMATION

Claimant sustained a compensable hearing loss, due to working in a noisy, high decibel environment over time, with a date of injury of (Date of Injury). He has been using hearing aids. His present hearing aids are over four years old and currently the request is for them to be replaced with new hearing aids with Bluetooth connectivity, noise reduction components and programmability. Claimant has treated with Dr. GB, otolaryngologist and JE, audiologist, since January 2015. He has been diagnosed with bilateral sensorineural hearing loss. Each year an audiogram was performed. Claimant testified that his hearing aids do not properly function, and he now lip-reads to understand conversations.

Petitioner’s request for new hearing aids was denied by the Carrier due to lack of documentation of Claimant’s hearing tests and the lack of evidence-based medicine to support the requested equipment. The reconsideration request was also denied due to lack of documentation from the requesting physician as to why the specific model was requested. Petitioner requested review by an independent review organization (IRO). The IRO issued a decision on May 28, 2019, upholding the Carrier's denial. The IRO Reviewer, a board-certified doctor in otolaryngology, explained that: “From the provided records, the current hearing aids are four years old. The average life of hearing aids ranges from five years to eight years with good maintenance. New hearing aids can be provided for a change in hearing that would dictate further amplification. Hearing aids are not required for any change in technology of the hearing aids with the rapidly changing industry. From the provided information, there is no documented change in the patient’s hearing to justify authorization of new hearing aids. The only audiogram is his current audiogram from March of this year.” Dr. B appealed the decision to this medical contested case hearing.

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 (22-a) 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 (18-a) 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. The Commissioner of the Division of Workers’ Compensation is required to adopt treatment guidelines that are evidence-based, scientifically valid and 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. 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 is 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."

Regarding hearing aids, the ODG, 24th online edition 2019 (updated September 3, 2019), in the Head Chapter, states as follows:

“Hearing Aids [are] recommended as indicated below. Hearing aids are recommended for any of the following: (1) Conductive hearing loss unresponsive to medical or surgical interventions. (Conductive hearing loss involves the outer and middle ear and is due to mechanical or physical blockage of sound. Usually, conductive hearing loss can be corrected medically or surgically.) (2) Sensorineural hearing loss. (Sensorineural or "nerve" hearing loss involves damage to the inner ear or the 8th cranial nerve. It can be caused by aging, prenatal or birth-related problems, viral or bacterial infections, heredity, trauma, exposure to loud noises, the use of certain drugs, fluid buildup in the middle ear, or a benign tumor in the inner ear.) or (3) Mixed hearing loss (conductive hearing loss coupled with sensorineural hearing loss). (Cigna, 2006) (Chisolm, 2007)

Hearing aids should be recommended by an otolaryngologist or a qualified audiologist, and prior authorization should be required for hearing aids costing more than $1,500 per ear, including hearing aid evaluation, fitting and purchase of hearing aids, once every four years. (CMS, 2014)”

The ODG recommends hearing aids for nerve damage hearing loss and Claimant's hearing loss is of this type. Claimant falls into the ODG time category of every four years to obtain new hearing aids. Specifically, what is in question is the type of hearing aids required. For the Petitioner to prevail, he must either provide evidence-based medicine supporting the new type of hearing aids or “if that evidence is not available, generally accepted standards of medical practice recognized in the medical community.” (Texas Labor Code Section 401.011 (22-a)) Dr. B credibly testified as a licensed medical specialist, that he has recommended the new hearing aids with the newest technology since he considers each case individually, and the requested hearing aids are the “best for him (Claimant) to function in his environment.” Dr. B explained the medical advances in hearing aid technology, stating that the requested digital hearing aids are now the current standard of care. Dr. B also convincingly stated that he has not read any studies about new hearing aid technology but has read studies stating the benefits of hearing aids. Once again, the decision of the IRO did not dispute Claimant’s need for hearing aids, just the specific type requested. Dr. B has overcome the presumption for the need of evidence based-studies for a specific type of hearing aid, with his convincing, credible testimony as an expert in the field of otolaryngology. Petitioner has provided evidence of generally accepted standards of medical practice recognized in the medical community to overcome the decision of the IRO.

The preponderance of the evidence is contrary to the decision of the IRO, and therefore Claimant is entitled to a purchase of binaural Phonak Audeo Marvel 90 rechargeable with TV connector, drying capsules, power pack, dry briks, dry and store, wax guards, and domes 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 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. On (Date of Injury), Employer provided workers’ compensation insurance with Bankers Standard Insurance Company, Carrier.
    4. On (Date of Injury), Claimant sustained a compensable injury.
    5. The IRO decision found that Claimant was not entitled to a purchase of binaural Phonak Audeo Marvel 90 rechargeable with TV connector, drying capsules, power pack, dry briks, dry and store, wax guards, and domes 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 Administrative Law Judge’s Exhibit Number 2.
  3. Claimant met the requirements for the need of hearing aids per the ODG.
  4. The ODG is silent as to the specific type of hearing aids.
  5. Dr. GB provided the necessary explanation as to Claimant’s need for the specific hearing aids request in accordance with generally accepted standards of medical practice recognized in the medical community.
  6. The preponderance of the evidence is contrary to the decision of the IRO and therefore, the Claimant is entitled to a purchase of binaural Phonak Audeo Marvel 90 rechargeable with TV connector, drying capsules, power pack, dry briks, dry and store, wax guards, and domes for the compensable injury of (Date of Injury).
  7. A purchase of binaural Phonak Audeo Marvel 90 rechargeable with TV connector, drying capsules, power pack, dry briks, dry and store, wax guards, and domes 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. A purchase of binaural Phonak Audeo Marvel 90 rechargeable with TV connector, drying capsules, power pack, dry briks, dry and store, wax guards, and domes is health care reasonably required for the compensable injury of (Date of Injury).

DECISION

A purchase of binaural Phonak Audeo Marvel 90 rechargeable with TV connector, drying capsules, power pack, dry briks, dry and store, wax guards, and domes is health care reasonably required for the compensable injury of (Date of Injury).

ORDER

Carrier is ordered to pay benefits in accordance with this decision, the Texas Workers’ Compensation Act, and the Commissioner’s Rules. Accrued but unpaid income benefits, if any, shall be paid in a lump sum together with interest as provided by law.

The true corporate name of the insurance carrier is BANKERS STANDARD INSURANCE COMPANY and the name and address of its registered agent for service of process is

C T CORPORATION SYSTEM
19999 BRYAN STREET, SUITE 900
DALLAS, TX 75201-3136

Signed this 17th day of October, 2019.

Judy L. Ney
Administrative Law Judge

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation (DWC). For the reasons discussed herein, the Administrative Law Judge determines that Claimant is entitled to an exploration spinal fusion, neuroplasty of nerve roots and dura, bilateral foraminotomy at L5/S1, and spinal monitoring for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On October 03, 2019, a medical contested case hearing was held to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to an exploration spinal fusion, neuroplasty of nerve roots and dura, bilateral foraminotomy at L5/S1, and spinal monitoring for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by CJ, ombudsman. Respondent/Carrier appeared and was represented by AS, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant, JS, M.D.

For Carrier: No one

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibits ALJ-1 through ALJ-3

Claimant’s Exhibits C-1 through C-12

Carrier’s Exhibits CR-A through CR-D

BACKGROUND INFORMATION

Claimant testified that he injured his low back while working in a warehouse. He underwent his first lumbar surgery in March 2016. It was a three-level fusion. It did not help. He began treating with JS, M.D., in March 2017. In April 2019, Dr. S performed an L3-S1 laminectomy, an L4-S1 neuroplasty, an L3/4 and L5/S1 transforaminal lateral interbody fusion, and a posterolateral fusion from L3 to S1. Claimant’s spinal monitoring during the surgery showed an increase in electrical activity during and immediately after the surgery. Claimant’s condition after the surgery improved until about a month and a half after the surgery when he began to experience weakness in both legs. Dr. S referred Claimant out for an EMG on June 06, 2019, that came back positive for bilateral L5 and S1 radiculopathy. Dr. S requested the proposed procedure. Insurance Carrier’s utilization review doctors denied the surgery because Claimant had not had any post-operative therapy. Dr. S requested the IRO. The IRO board certified orthopedic surgeon agreed with the utilization review doctors on the denial. Claimant requested a medical contested case hearing.

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. The Commissioner of the DWC 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 DWC has adopted treatment guidelines by DWC 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 DWC Rule 133.308(s), "A decision issued by an IRO is not considered anagency 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."

On the date of this medical contested case hearing, the ODG had no clear guidance with regard to an exploration spinal fusion. The terms “exploration” and “exploratory” were found once in the Low Back section. It was under Revision Surgery for Pseudoarthrosis. Under that heading, the ODG stated the following:

Diagnostic evaluation: A history and physical should be undertaken to rule out disease progression, infection, spinal implant failure, and adjacent segment degeneration. This is particularly important for patients who deny significant symptom relief postoperatively. Other sources of pain include that referred from the hip or sacroiliac joints. Neurologic status should be examined to rule out non-spinal pathology (such as multiple sclerosis or stroke). Vascular claudication should be ruled out. Lab studies should include a complete blood count with differential, erythrocyte sedimentation rate, and C-reactive protein. Dynamic flexion-extension radiographs are the imaging modality of choice, with MRI reserved only for indeterminate radiographical evaluation. CT exposes patients to dangerous ionizing radiation and should not be routinely used to “monitor” fusion progression. The gold standard for assessment is an open surgical exploration. Other factors to consider include overlying psychological issues. (Chun, 2015) (Bederman, 2016)

With respect to neuroplasty of nerve roots and dura, the ODG is relatively silent. It is only found in the Low Back section eight times. When it is found, neuroplasty is denoted as a percutaneous epidural neuroplasty, which is not what the procedure being recommended in this case. Specifically, under “Neuroplasty”, the ODG states, “This topic is indexed as a common search term for guidelines hosted elsewhere. Click-through and see related topics field. See Percutaneous epidural neuroplasty.”

With respect to the bilateral foraminotomy, this procedure is only listed twice. Like neuroplasty, under Foraminotomy, the ODG states, “This topic is indexed as a common search term for guidelines hosted elsewhere. Click-through and see related topics field. See Discectomy/ laminectomy.” Under Discectomy/laminectomy, foraminotomy is only listed as a surgical procedure. Specifically, the ODG only says, “Surgical decompression of a lumbar nerve root or roots may include the following procedures: discectomy or microdiscectomy (partial removal of the disc) and laminectomy, hemilaminectomy, laminotomy, or foraminotomy (providing access by partial or total removal of various parts of vertebral bone).”

While the IRO doctor checked that he used the ODG along with his clinical judgment to make his decision, he did not cite how or what section of the ODG he utilized. He noted Claimant had been followed for chronic low back and leg pain and was status post exploration of a prior spinal fusion with further decompression from L3 to S1 and transforaminal lumbar interbody fusion at L3/4 and L4/5 performed on April 08, 2019. He noted the post-operative CT results with post-operative changes from L3 to S1 with continuing stenosis and no changes at L2. He noted the EMG studies were consistent with the surgical history. He noted there was a lack of post-operative rehabilitative efforts. He found as of June 18, 2019, Claimant was stated to be improving and there was no specific rationale for performing further surgery. He did not see the potential benefits for further surgery outweighing the risks and did not find the surgery medically necessary. This was the extent of the IRO doctor’s analysis.

Dr. S testified explaining that Claimant did not have post-operative physical therapy because he cannot do physical therapy. He is basically wheelchair bound. He is to the point that his autonomic nervous system is becoming affected, as exhibited by the discoloration in his feet and legs. Dr. S testified physical therapy would have been a waste of time. He explained surgery is the only treatment that will help Claimant and that his recommended surgery is within the generally accepted standard of medical care. He explained that during the April 08, 2019, surgery, he removed the stenotic features around the L3 and L4 vertebra and fused the mechanical problems at the L5/S1 levels. He testified Claimant did initially improve, as the IRO doctor mentioned, but that he then steadily declined as documented in the EMG. The EMG was not consistent with a surgical history, as claimed by the IRO doctor, as the spinal monitoring during the surgery indicated the nerve conduction was strong and clear. The post-surgical EMG showed Claimant’s condition had changed and surgery was warranted. Dr. S believes Claimant developed post-surgical scar tissues, as evidenced by the EMG results, and that the only way to treat this condition is to surgically remove the scar tissue. He testified unless the scar tissue is removed and this surgery is performed, Claimant will become permanently wheelchair bound and his nerves will have no hope of regenerating.

Claimant met his burden of proof to overcome the IRO decision.

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. On (Date of Injury), Claimant sustained a compensable injury.
    4. The Independent Review Organization board certified orthopedic surgeon determined Claimant should not have an exploration spinal fusion, neuroplasty of nerve roots and dura, bilateral foraminotomy at L5/S1, and spinal monitoring.
  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 Administrative Law Judge’s Exhibit Number 2.
  3. An exploration spinal fusion, neuroplasty of nerve roots and dura, bilateral foraminotomy at L5/S1, and spinal monitoring 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 exploration spinal fusion, neuroplasty of nerve roots and dura, bilateral foraminotomy at L5/S1, and spinal monitoring is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is entitled to an exploration spinal fusion, neuroplasty of nerve roots and dura, bilateral foraminotomy at L5/S1, and spinal monitoring 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 XL SPECIALTY INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

Signed this 04th day of October, 2019.

KEN WROBEL
Administrative Law Judge

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Administrative Law Judge determined that Claimant is not entitled to Fioricet 50mg/300mg/40mg tabs Q day prn #30 with 2 refills for the (Date of Injury), compensable injury.

STATEMENT OF THE CASE

On September 30, 2019, Britt Clark, a Division administrative law judge, held a contested case hearing to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that the Claimant/Petitioner is not entitled to Fioricet 50mg/300mg/40mg tabs Q day prn #30 with 2 refills for the (Date of Injury), compensable injury?

PARTIES PRESENT

Claimant/Petitioner appeared and was assisted by EM, ombudsman. Insurance Carrier/Respondent appeared and was represented by AS, attorney.

DISCUSSION

Claimant sustained a compensable injury on (Date of Injury). During the course of his treatment, his treating doctor began prescribing Fioricet for his headaches. The Carrier denied this medication based on the lack of medical necessity for the medication. An IRO was requested, which concluded that the Fioricet was not medically necessary medical treatment for the compensable injury of (Date of Injury). Claimant disagreed with the IRO and relied on the opinion of his treating doctor and the Required Medical Examination (RME) doctor. Carrier argued that the utilization review doctors and the IRO doctor correctly determined that the medication was not medically necessary.

Texas Workers’ Compensation Act: Texas Labor Code §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 Labor Code §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 withevidence-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 Labor Code §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. 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. Labor Code §413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the Commissioner are presumed reasonable in accordance with Labor Code §413.017(1).

In accordance with the above statutory guidance, the Division of Workers' Compensation has adopted treatment guidelines by 28 TAC §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 Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG. Also, in accordance with 28 TAC §133.308(s), "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."

On the date of this medical contested case hearing, the ODG provides the following with regard to Fioricet:

Not recommended.

See Barbiturate-containing analgesic agents (BCAs).

The ODG provides the following with regard to Barbiturate-containing analgesic agents (BCAs):

Not recommended for chronic pain.

The potential for drug dependence is high and no evidence exists to show a clinically important enhancement of analgesic efficacy of BCAs due to the barbiturate constituents. (McLean, 2000) Fioricet is commonly used for acute headache, with some data to support it, but there is a risk of medication overuse as well as rebound headache. (Friedman, 1987) The AGS updated Beers criteria for inappropriate medication use includes barbiturates. (AGS, 2015)

As noted in the ODG, Fioricet is not recommended for chronic pain. While there is some notation for use for acute headache, there was a lack of medical evidence indicating that this condition was prescribed for acute headaches given Claimant’s testimony as to the chronicity of his condition. Moreover, even when used for acute headache, the ODG cautions about the risk of overuse. The utilization review doctors and the IRO doctor relied on the ODG and concluded that this medication is not medically necessary.

Claimant relied on the opinion of his treating doctor, Dr. SW, and her nurse practitioner, PS. Dr. W opined that Fioricet was medically necessary because it is “very effective in relieving [Claimant’s] post-traumatic headaches.” Dr. W does not reference the ODG or provide evidence-based medical studies to support her opinion. In another letter, Dr. W address that the ODG states that Fioricet is commonly used for acute headache and states “the ODG guidelines do not apply in this situation as [Claimant] has episodic headache therefore Floricet was denied for an erroneous reason.” It is unclear how the ODG does not apply in Claimant’s situation, and Dr. W does not provide an adequate explanation as to why this medication is medically necessary for episodic headaches. Claimant also cited to the opinion of Dr. WB, the RME doctor, who opined that Claimant’s medical treatment is medically necessary based on several examinations. His opinion, which is not specific to Floricet, does not provide sufficient evidence-based medical support regarding the specific medication at issue.

While the undersigned considered Claimant’s testimony as the improvement of his headaches from the medication, a qualified expert medical opinion with reference to evidence-based medicine was necessary for Claimant meet his burden of proof on this matter. The required evidence-based medical evidence was lacking in this case. Therefore, the preponderance of the evidence is not contrary to the decision of the IRO that Claimant is not entitled to Fioricet 50mg/300mg/40mg tabs Q day prn #30 with 2 refills.

The Administrative Law Judge considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.

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. On (Date of Injury), Employer provided workers’ compensation insurance through American Home Assurance Company, Insurance Carrier.
    4. On (Date of Injury), Claimant sustained a compensable injury.
  2. Insurance Carrier/Respondent delivered to Claimant/Petitioner a single document stating the true corporate name of Insurance Carrier/Respondent, and the name and street address of Insurance Carrier/Respondent’s registered agent, which document was admitted into evidence as Administrative Law Judge’s Exhibit Number 2.
  3. Fioricet 50mg/300mg/40mg tabs Q day prn #30 with 2 refills is not health care reasonably required for the compensable injury of (Date of Injury).

CONCLUSIONS OF LAW

  1. The Texas Department of Insurance, DWC, has jurisdiction to hear this case.
  2. Venue is proper in the (City) Field Office.
  3. The preponderance of the evidence is not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to Fioricet 50mg/300mg/40mg tabs Q day prn #30 with 2 refills for the (Date of Injury), compensable injury.

DECISION

The preponderance of the evidence is not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to Fioricet 50mg/300mg/40mg tabs Q day prn #30 with 2 refills for the (Date of Injury), compensable injury.

ORDER

Insurance Carrier/Respondent is not liable for the benefits at issue in this hearing. Claimant/Petitioner remains entitled to medical benefits for the compensable injury in accordance with Labor Code § 408.021.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY, and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY
211 EAST 7th STREET, SUITE 620
AUSTIN, TX 78701-3218

Signed this 1st day of October, 2019.

BRITT CLARK
Administrative Law Judge

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation (DWC). For the reasons discussed herein, the Administrative Law Judge (ALJ) determines that:

Claimant is not entitled to 80 hours of chronic pain management for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

Thomas Hight, a DWC administrative law judge, held a contested case hearing on September 3, 2019 to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to 80 hours of chronic pain management for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner appeared and was represented by MW, lay representative. Claimant did not appear. Respondent/Carrier appeared and was represented by JF, attorney. MW also appeared for Sub-Claimant.

EVIDENCE PRESENTED

The following witnesses testified:

For Petitioner: Dr. KW.

For Claimant: None.

For Sub-Claimant: None.

For Insurance Carrier: None.

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibits: ALJ-1 and ALJ-2.

Petitioner’s Exhibits: None

Claimant’s Exhibits: None.

Sub-Claimant’s Exhibits: SC-1 through SC-5.

Insurance Carrier’s Exhibits: CR-A through CR-H.

DISCUSSION

Although properly notified, Claimant failed to appear for the contested case hearing scheduled for 2:00 pm on September 3, 2019. A 10-day letter was sent to Claimant on September 5, 2019, advising him that the hearing had convened, that the record was opened and developed, and that the record would be held open for 10 days after receipt of the letter to afford Claimant the opportunity to respond in writing, show good cause for his failure to appear at the September 3, 2109 hearing, and request that the hearing be rescheduled to permit him to present evidence on the disputed issue. Claimant failed to timely respond in writing to the 10-day letter as required by DWC Rule 142.11(a), and the record was closed on September 26, 2019.

Claimant sustained a compensable lifting injury to his low back on (Date of Injury). KW, PhD, requested pre-authorization for 80 hours of chronic pain management. The IRO upheld the previous denials, and Dr. W appealed.

The hearing file provided to the ALJ contained a review by a DWC employee stating the appeal from the IRO was not timely filed, because the IRO decision was sent to the parties on May 28, 2019 and the appeal was filed on June 25, 2019. However, the IRO decision in the hearing file had a fax header dated June 11, 2019, which was the date Dr. W maintained he received the decision. The ALJ determined that the appeal was timely filed.

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. 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(s), "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."

The ODG entry for chronic pain programs (functional restoration programs) provides the following criteria for general use of multidisciplinary outpatient pain management programs:

Outpatient pain rehabilitation programs may be considered medically necessary in the following circumstances:

  1. The patient has a chronic pain syndrome, with evidence of loss of function that persists beyond three months and has evidence of three or more of the following:
    1. Excessive dependence on health-care providers, spouse, or family;
    2. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
    3. Withdrawal from social activities or normal contact with others, including work, recreation, or other social contacts;
    4. Failure to restore preinjury function after a period of disability such that the physical capacity is insufficient to pursue work, family, or recreational needs;
    5. Development of psychosocial sequelae that limits function or recovery after the initial incident, including anxiety, fear-avoidance, depression, sleep disorders, or nonorganic illness behaviors (with a reasonable probability to respond to treatment intervention);
    6. The diagnosis is not primarily a personality disorder or psychological condition without a physical component;
    7. There is evidence of continued use of prescription pain medications (particularly those that may result in tolerance, dependence or abuse) without evidence of improvement in pain or function.
  2. Previous methods of treating chronic pain have been unsuccessful and there is an absence of other options likely to result in significant clinical improvement.
  3. An adequate and thorough multidisciplinary evaluation has been made. This should include pertinent validated diagnostic testing that addresses the following:
    1. A physical exam that rules out conditions that require treatment prior to initiating the program. All diagnostic procedures necessary to rule out treatable pathology, including imaging studies and invasive injections (used for diagnosis), should be completed prior to considering a patient a candidate for a program. The exception is diagnostic procedures that were repeatedly requested and not authorized. Although the primary emphasis is on the work-related injury, underlying non-work related pathology that contributes to pain and decreased function may need to be addressed and treated by a primary care physician prior to or coincident to starting treatment;
    2. Evidence of a screening evaluation should be provided when addiction is present or strongly suspected;
    3. Psychological testing using a validated instrument to identify pertinent areas that need to be addressed in the program (including but not limited to mood disorder, sleep disorder, relationship dysfunction, distorted beliefs about pain and disability, coping skills and/or locus of control regarding pain and medical care) or diagnoses that would better be addressed using other treatment should be performed;
    4. An evaluation of social and vocational issues that require assessment.
  4. If a goal of treatment is to prevent or avoid controversial or optional surgery, a trial of 10 visits (80 hours) may be implemented to assess whether surgery may be avoided.
  5. If a primary reason for treatment in the program is addressing possible substance use issues, an evaluation with an addiction clinician may be indicated upon entering the program to establish the most appropriate treatment approach (pain program vs. substance dependence program). This must address evaluation of drug abuse or diversion (and prescribing drugs in a non-therapeutic manner). In this particular case, once drug abuse or diversion issues are addressed, a 10-day trial may help to establish a diagnosis, and determine if the patient is not better suited for treatment in a substance dependence program. Addiction consultation can be incorporated into a pain program. If there is indication that substance dependence may be a problem, there should be evidence that the program has the capability to address this type of pathology prior to approval.
  6. Once the evaluation is completed, a treatment plan should be presented with specifics for treatment of identified problems, and outcomes that will be followed.
  7. There should be documentation that the patient has motivation to change, and is willing to change their medication regimen (including decreasing or actually weaning substances known for dependence). There should also be some documentation that the patient is aware that successful treatment may change compensation and/or other secondary gains. In questionable cases, an opportunity for a brief treatment trial may improve assessment of patient motivation and/or willingness to decrease habituating medications.
  8. Negative predictors of success (as outlined above) should be identified, and if present, the pre-program goals should indicate how these will be addressed.
  9. If a program is planned for a patient that has been continuously disabled for greater than 24 months, the outcomes for the necessity of use should be clearly identified, as there is conflicting evidence that chronic pain programs provide return-to-work beyond this period. These other desirable types of outcomes include decreasing post-treatment care including medications, injections and surgery. This cautionary statement should not preclude patients off work for over two years from being admitted to a multidisciplinary pain management program with demonstrated positive outcomes in this population.
  10. Treatment is not suggested for longer than 2 weeks without evidence of compliance and significant demonstrated efficacy as documented by subjective and objective gains. (Note: Patients may get worse before they get better. For example, objective gains may be moving joints that are stiff from lack of use, resulting in increased subjective pain.) However, it is also not suggested that a continuous course of treatment be interrupted at two weeks solely to document these gains, if there are preliminary indications that they are being made on a concurrent basis.
  11. Integrative summary reports that include treatment goals, compliance, progress assessment with objective measures and stage of treatment, must be made available upon request at least on a bi-weekly basis during the course of the treatment program.
  12. Total treatment duration should generally not exceed 4 weeks (20 full-days or 160 hours), or the equivalent in part-day sessions if required by part-time work, transportation, childcare, or comorbidities. (Sanders, 2005) If treatment duration more than 4 weeks is required, a clear rationale for the specified extension and reasonable goals to be achieved should be provided. Longer durations require individualized care plans explaining why improvements cannot be achieved without an extension as well as evidence of documented improved outcomes from the facility (particularly in terms of the specific outcomes that are to be addressed).
  13. At the conclusion and subsequently, neither re-enrollment in repetition of the same or similar rehabilitation program (e.g. work hardening, work conditioning, out-patient medical rehabilitation) is medically warranted for the same condition or injury (with possible exception for a medically necessary organized detox program). Prior to entry into a program the evaluation should clearly indicate the necessity for the type of program required, and providers should determine upfront which program their patients would benefit more from. A chronic pain program should not be considered a "stepping stone" after less intensive programs, but prior participation in a work conditioning or work hardening program does not preclude an opportunity for entering a chronic pain program if otherwise indicated.
  14. Suggestions for treatment post-program should be well documented and provided to the referral physician. The patient may require time-limited, less intensive post-treatment with the program itself. Defined goals for these interventions and planned duration should be specified.
  15. Post-treatment medication management is particularly important. Patients that have been identified as having substance abuse issues generally require some sort of continued addiction follow-up to avoid relapse.

The IRO doctor, described in the IRO decision as “PhD, Board Certified Psychiatrist”, thought the requested pain management program was not medically necessary, noting that it was unclear whether Claimant had undergone psychometric testing with validity measures to assess the validity of his subjective complaints, that there were no serial treatment records submitted for review documenting Claimant’s objective, functional response to treatment, and that it was unclear why Claimant’s physical demand level was limited to sedentary given that the accepted diagnosis was a lumbar strain/sprain only.

Dr. KW testified at some length, maintaining that the ODG criteria were met in this case. He did not credibly explain why Claimant needed additional treatment for a lumbar strain sustained three and one-half years ago.

There was no objection to the testimony, reports, or qualifications of any doctor.

The Administrative Law Judge considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.

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. On (Date of Injury) Employer provided workers’ compensation insurance with Indemnity Insurance Company of North America, Carrier.
    4. On (Date of Injury) Claimant sustained a compensable injury.
    5. The Independent Review Organization determined Claimant should not have the requested treatment.
    6. The compensable injury is a lumbar strain.
  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.
  3. 80 hours of chronic pain management is not health care reasonably required for the compensable injury of (Date of Injury).
  4. Claimant failed to appear for the September 3, 2019 contested case hearing and did not respond to the Division’s letter offering him the opportunity to have the hearing rescheduled.
  5. Claimant did not have good cause for failing to appear at the contested case hearing.

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 not contrary to the decision of the IRO that 80 hours of chronic pain management is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to 80 hours of chronic pain management for the compensable injury of (Date of Injury).

ORDER

Carrier is not liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with Section 408.021 of the Act.

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201

Signed this 26th day of September, 2019.

Thomas Hight
Administrative Law Judge

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Administrative Law Judge determined that: (1) the Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case and determine whether the preponderance of the evidence is contrary to the decision of the Independent Review Organization (IRO) that the Claimant/Petitioner is not entitled to right open biceps tenodesis surgery; (2) the preponderance of the evidence is not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to right open biceps tenodesis surgery; (4) Claimant/Petitioner did not timely appeal the IRO decision; and (5) Insurance Carrier/Respondent is not liable for payment of the right open biceps tenodesis surgery in accordance with 28 Texas Administrative Code (TAC) §134.600(c).

STATEMENT OF THE CASE

On August 28, 2019, Kara Squier, a Division administrative law judge, held a contested case hearing to decide the following disputed issues:

Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that the Claimant/Petitioner is not entitled to right open biceps tenodesis surgery?

Did the Claimant/Petitioner timely appeal the IRO decision?

Does the Division have jurisdiction to determine whether the preponderance of the evidence is contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to right open biceps tenodesis surgery?

To reflect the issues actually litigated by the parties, Issue Number 4 was added as follows:

  1. Is Insurance Carrier/Respondent liable for payment of the right open biceps tenodesis surgery in accordance with 28 TAC §134.600(c)?

Following the hearing, the undersigned reopened the record to notify the parties that Issue Number 4 was added to reflect the issues actually litigated during the hearing. The parties were provided an additional opportunity to object or provide further responses, and the record closed on September 9, 2019.

PARTIES PRESENT

Claimant/Petitioner appeared and was assisted by CT, ombudsman. Insurance Carrier/Respondent appeared and was represented by LW, attorney.

DISCUSSION

It is undisputed that Claimant/Petitioner sustained a compensable injury on (Date of Injury). Claimant/Petitioner’s orthopedic surgeon, JP, M.D., requested preauthorization on January 23, 2019, for a right open biceps tenodesis surgery. On January 25, 2019, the utilization review agent, GS, D.O., sent out a decision in which he determined the requested surgery was not medically necessary in accordance with the Official Disability Guidelines (ODG). Dr. P submitted a second pre-authorization request on January 28, 2019. On February 1, 2019, the second utilization review agent, GG, M.D., submitted a denial indicating the requested surgery was not medically necessary in accordance with the ODG.

Dr. P performed the requested surgery on February 15, 2019, and Claimant/Petitioner requested a review by an independent review organization (IRO) on March 17, 2019. The IRO reviewer upheld the previous denials, and Claimant/Petitioner appealed by requesting a medical contested case hearing on June 11, 2019.

Timeliness of Appeal and Jurisdiction

28 TAC §133.308(s)(1)(A) states, to wit:

The written appeal must be filed with the division's Chief Clerk of Proceedings no later than the later of the 20th day after the effective date of this section or 20 days after the date the IRO decision is sent to the appealing party and must be filed in the form and manner required by the division. Requests that are timely submitted to a division location other than the division's Chief Clerk of Proceedings, such as a local field office of the division, will be considered timely filed and forwarded to the Chief Clerk of Proceedings for processing; however, this may result in a delay in the processing of the request.

In this particular case, the IRO decision was issued and sent to the parties on April 15, 2019. The applicable deadline for the filing of the appeal of the IRO decision in this case was 20 days from the date the IRO decision was sent to the parties. Both parties offered a request to schedule a medical contested case hearing signed on June 11, 2019, and the evidence established the request was received on that date. Considering the IRO decision is dated April 15, 2019, Claimant/Petitioner’s request to schedule a medical contested case hearing was not timely. However, an assertion, or finding, that an appeal is untimely under 28 TAC §133.308 does not deprive the Division of subject matter jurisdiction to decide the disputed issue. The untimeliness of the appeal is a defense to the insurance carrier’s ultimate liability for the services or bill in question. See Medical Contested Case Hearing Decision No. 09122, M6-09-13618-01, citingIgal v. Brightstar Info. Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000); and City of Seabrook v. Port of Houston Auth., 199 S.W.3d 403 (Tex. App.-Houston [1st Dist.] 2006, pet. abated).

Medical Necessity

Texas Workers’ Compensation Act: Texas Labor Code §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 Labor Code §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 Labor Code §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. 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. Labor Code §413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the commissioner are presumed reasonable in accordance with Labor Code §413.017(1).

In accordance with the above statutory guidance, the Division of Workers' Compensation has adopted treatment guidelines by 28 TAC §137.100. This rule directs health care providers to provide treatment in accordance with the current edition of the ODG, and such treatment is presumed to be health care reasonably required as defined in the Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG. Also, in accordance with 28 TAC §133.308(s), "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."

On the date of this medical contested case hearing, the ODG provides the following with regard to right open biceps tenodesis surgery:

Recommended (tenodesis) for advanced biceps tendinopathy, subluxation/dislocation, or rupture under age 55 (tenotomy/debridement > 55); may be considered in patients over 35 with type II or IV SLAP lesions when other criteria are met and biceps specific symptoms are documented.

Criteria for Surgery for Biceps tenodesis (or tenotomy):

Risk versus Benefit: Compared with primary SLAP repair, risks are lower with tenotomy or tenodesis. Complications of tenotomy are mild and include cosmetic deformity, residual pain or achiness, and slight strength deficit for elbow flexion and forearm supination. Patient satisfaction over 90% can still be expected following tenotomy with mild and/or infrequent reports of cosmetic deformity (13%), occasional cramping (19%), and subjective weakness (17%), mostly in men. Satisfaction is remarkably high for tenotomy, especially for females and middle-age or older individuals. Tenodesis complications can include failure of fixation resulting in cosmetic deformity and/or residual pain, stiffness, infection, hematoma, neurologic or vascular injury, fracture, and complex regional pain syndrome (CRPS). Tenodesis in young (avg. age 38) active duty military resulted in only 5% complications and less than 1% failures requiring revision.

Biceps tenodesis (suture of the end of the tendon to the bone) is a surgical procedure sometimes performed for refractory biceps tendonitis of the shoulder. Tenodesis may be performed as an isolated procedure, or as part of a larger shoulder surgery such as a rotator cuff repair. There can be a partial detachment of the biceps tendon from the socket of the shoulder (SLAP tear), or simply advanced inflammation and irritation of the biceps tendon itself. Tenodesis is more commonly performed in patients over age 40, whereas other procedures like direct SLAP repair may be more appropriate for younger patients. Individuals older than 35 years with an isolated type II SLAP lesion had a shorter postoperative recovery, a more predictable functional outcome, and higher rate of satisfaction and return to activity with tenodesis compared to direct biceps repair. These authors concluded that biceps tenodesis is preferable to biceps repair for isolated type II SLAP lesions in non-overhead athletes older than 35. (Denard, 2014)

Direct surgical repair has been a gold standard for most type II and type IV SLAP lesions that fail nonoperative management. However, more recent reports have demonstrated unacceptably high failure rates following primary repair of type II SLAP lesions. Biceps tenodesis may also offer an acceptable, if not better alternative to primary repair of many SLAP lesions. (Gottschalk, 2014) Biceps tenodesis is a viable proven treatment option for SLAP repair. (Huri, 2014) Successful arthroscopic repair of symptomatic superior labral tears in young athletes has been well documented. But, superior labral repair in patients older than 40 years is controversial, with concerns for residual postoperative pain, stiffness, and higher rates of revision surgery. While studies demonstrate that good outcomes can be obtained with SLAP repair in some older cohorts of patients, age over 40 and workers' compensation status are independent risk factors for increased surgical complications. It was concluded that the cumulative evidence is more supportive of labral debridement or biceps tenotomy over direct labral repair when an associated rotator cuff tear is present. (Erickson, 2014) Practice trends indicate that the proportion of SLAP repairs has decreased over time, with an increase in biceps tenodesis and tenotomy. Increased patient age correlates with more likelihood of treatment with biceps tenodesis or tenotomy, replacing SLAP repair. For patients with isolated SLAP lesions, the proportion of SLAP repairs decreased from 69.3% to 44.8%, while biceps tenodesis increased from 1.9% to 18.8%, and biceps tenotomy increased from 0.4% to 1.7%. For patients undergoing concomitant rotator cuff repair, SLAP repair decreased from 60.2% to 15.3% (often simple labral debridement), while biceps tenodesis or tenotomy increased from 6.0% to 28.0%. There was a significant difference in the mean age of patients undergoing SLAP repair (37.1 years) versus biceps tenodesis (47.2 years) versus biceps tenotomy (55.7 years). (Patterson, 2014)

Another U.S. analysis of almost 45,000 biceps tenodesis procedures reported yearly increases almost doubling since 2008, with significant regional variations in incidence. (Werner, 2015) A national insurance database of almost 30,000 rotator cuff repairs (RCR) including over 6,300 having concomitant biceps tenodesis (arthroscopic and open) was analyzed for subsequent re-operation rates. Significantly more patients required repeat surgery by 6 months and 1 year who had also had biceps tenodesis. The tenodesis group also had higher dislocation, nerve injury, and surgical site infection rates. (Erickson, 2017) A randomized controlled trial (RCT) of 129 rotator cuff repair patients divided to debridement, tenodesis, or tenotomy groups, demonstrated equally effective improvements in pain and function regardless of technique. Debridement resulted in the lowest occurrence of Popeye deformity, which was reported in only 37% of tenotomy and 26% of tenodesis patients. Tenodesis was recommended primarily for males who needed to specifically preserve supination strength. (Oh, 2016) Another RCT comparing 151 rotator cuff repair patients older than age 55 noted equal outcomes with associated tenodesis or tenotomy, but shorter surgical time and faster pain relief with tenotomy, suggesting more suitability for older patients. (Zhang, 2015) A systematic review/meta-analysis (SR/MA) of 9 studies and 650 patients, mostly having concomitant shoulder pathology, compared outcomes of tenodesis vs. tenotomy, with no significant differences in functional scores, elbow flexion, or supination strength between groups. Popeye deformity and temporary cramping occurred somewhat more frequently with tenotomy. (Gurnani, 2016) An RCT of 128 tenodesis and tenotomies also showed no significant differences in functional scores but a 3-times higher incidence of Popeye deformity with tenotomy. Interestingly, 80% of tenotomy patients did not have the cut end of the tendon retract distal to the bicipital groove on MRI at 12 months. (Lee, 2016) Most studies comparing tenodesis to tenotomy are limited to lower level evidence and have confounding factors such as other concomitant shoulder procedures and surgeon preferences, suggesting a need for more high-powered studies. (Patel, 2016) Biceps tendinopathy is commonly associated with other shoulder pathologies, and persistent shoulder symptoms following tenodesis is commonly related to missed or untreated lesions. Tenodesis should be reserved for younger, high-demand patients since it requires more rehabilitation time and has a higher cost. (Mellano, 2015)

Complications of tenotomy are mild and include cosmetic deformity, residual pain or achiness, and slight strength deficit for elbow flexion and forearm supination. Tenodesis complications include failure of fixation resulting in cosmetic deformity and/or residual pain, stiffness, infection, hematoma, neurologic or vascular injury, fracture, and complex regional pain syndrome (CRPS). (Virk, 2016) A large (166 patients) retrospective series of unicortical suture button tenodesis in young (avg. age 38) active duty military resulted in only 5% complications and less than 1% failures requiring revision. (Cook, 2017) A patient satisfaction analysis of 104 tenotomy patients reported 91-95% overall satisfaction with mild and/or infrequent reports of cosmetic deformity (13%), occasional cramping (19%), and subjective weakness (17%), mostly in men. Satisfaction is quite high, especially for females and middle-age or older individuals. (Meeks, 2017)

Surgical tenodesis techniques:46 patients had either open or arthroscopic long head tenodesis with similar pain relief and clinical outcomes. (Gombera, 2015) An RCT of 80 patients compared outcomes of suture anchor or interference screw (IS) fixation over 2 years, with similar functional results, except for a significantly higher fixation failure rate for IS, especially for workers with more physically demanding work levels. (Park, 2017) 211 patients had either arthroscopic keyhole or IS techniques with less pain, visible deformity, distal tendon migration, as well as fewer complications and less cost using keyhole fixation. (Kany, 2016) Another cost-effective, reliable, and innovative method of arthroscopic biceps tenodesis involves a lasso-loop attachment to the antero-medial footprint rotator cuff repair suture anchor, requiring no additional anchors or secondary surgical scars. (Uschok, 2016)

Claimant/Petitioner testified concerning the mechanism of injury and his course of treatment; however, a qualified expert medical opinion with reference to evidence-based medicine was necessary for Claimant/Petitioner to meet his burden of proof on this matter and such evidence-based medical evidence was lacking in this case. As such, insufficient evidence-based medical evidence existed to explain that the requested surgery was health care reasonably required for the compensable injury. Therefore, the preponderance of the evidence is not contrary to the decision of the IRO that Claimant/Petitioner is not entitled to right open biceps tenodesis surgery.

Insurance Carrier Liability

Pursuant to 28 TAC §134.600(c), the insurance carrier is liable for all reasonable and necessary medical costs relating to the health care:

  1. listed in subsection (p) or (q) of this section only when the following situations occur:
    1. an emergency, as defined in Chapter 133 of this title (relating to General Medical Provisions);
    2. preauthorization of any health care listed in subsection (p) of this section that was approved prior to providing the health care;
    3. concurrent utilization review of any health care listed in subsection (q) of this section that was approved prior to providing the health care; or
    4. when ordered by the commissioner;
    5. or per subsection (r) of this section when voluntary certification was requested and payment agreed upon prior to providing the health care for any health care not listed in subsection (p) of this section.

The requested surgery is non-emergency health care that required preauthorization pursuant to 28 TAC §134.600(p). Considering Claimant/Petitioner did not obtain preauthorization prior to receiving the surgery, Insurance Carrier/Respondent is not liable for the surgery. Moreover, as previously mentioned, the decision of the IRO is upheld and the surgery is not considered reasonable and medically necessary.

The Administrative Law Judge considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.

FINDINGS OF FACT

  1. The parties stipulated to the following facts:
    1. On (Date of Injury), Claimant was the employee of (Employer), Employer.
    2. On (Date of Injury), Employer provided workers’ compensation insurance through New York Marine & General Insurance Company, Insurance Carrier.
    3. On (Date of Injury), Claimant sustained a compensable injury.
  2. Insurance Carrier/Respondent delivered to Claimant/Petitioner a single document stating the true corporate name of Insurance Carrier/Respondent, and the name and street address of Insurance Carrier/Respondent’s registered agent, which document was admitted into evidence as Administrative Law Judge’s Exhibit Number 2.
  3. The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
  4. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
  5. Right open biceps tenodesis surgery is non-emergency health care that requires pre-authorization pursuant to 28 TAC §134.600(p).
  6. Dr. P requested pre-authorization for a right open biceps tenodesis surgery that went to utilization reviews on January 25, 2019, and February 1, 2019, and the requests were denied as not medically necessary.
  7. Dr. P performed the right open biceps tenodesis surgery on February 15, 2019.
  8. Claimant requested a review by an IRO on March 17, 2019.
  9. The IRO decision is dated April 15, 2019, and the IRO reviewer upheld the previous denials.
  10. Claimant/Petitioner’s appeal of the IRO decision was filed on June 11, 2019, not within the 20-day deadline contained in 28 TAC §133.308(s)(1)(A).
  11. A right open biceps tenodesis surgery is not 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 and determine whether the preponderance of the evidence is contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to right open biceps tenodesis surgery.
  2. Venue is proper in the (City) Field Office.
  3. The preponderance of the evidence not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to right open biceps tenodesis surgery.
  4. Claimant/Petitioner did not timely appeal the IRO decision.
  5. Insurance Carrier/Respondent is not liable for payment of the right open biceps tenodesis surgery in accordance with 28 TAC §134.600(c).

DECISION

The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case and determine whether the preponderance of the evidence is contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to right open biceps tenodesis surgery. The preponderance of the evidence not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to right open biceps tenodesis surgery. Claimant/Petitioner did not timely appeal the IRO decision. Insurance Carrier/Respondent is not liable for payment of the right open biceps tenodesis surgery in accordance with 28 TAC §134.600(c).

ORDER

Insurance Carrier/Respondent is not liable for the benefits at issue in this hearing. Claimant/Petitioner remains entitled to medical benefits for the compensable injury in accordance with Labor Code § 408.021.

The true corporate name of the insurance carrier is NEW YORK MARINE & GENERAL INSURANCE COMPANY, and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218

Signed this 12th day of September, 2019.

Kara Squier
Administrative Law Judge

Top