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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 17, 2011, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that a facetectomy on the right agitation (sic) to laminectomy with fusion at L4/5, anterior lumbar interbody fusion is not health care reasonably required for the compensable injury of [date of injury]. The appellant (claimant) appealed, disputing the hearing officer’s determination that the preponderance of the evidence is not contrary to the decision of the IRO.
DECISION
Reversed and remanded for reconstruction of the record.
The CCH record, including the exhibits, has not been received by the Appeals Panel. Efforts to locate the recording of the proceeding have been unsuccessful. Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. Consequently, we reverse and remand this case for reconstruction of the record, or forwarding of the CCH record if it can be located. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is LIBERTY INSURANCE CORPORATION 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.
Margaret L. Turner
Appeals Judge
CONCUR:
Cynthia A. Brown
Appeals Judge
Thomas A. Knapp
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 19, 2010. The hearing officer resolved the disputed issue by deciding that the preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that the appellant (claimant) is not entitled to a re-do lumbar laminectomy at levels L3-S1, posterior lumbar interbody fusion at levels L4-5 and posterolateral fusion with pedicle screw fixation at levels L3-S1 with a four day in-patient hospital stay for the compensable injury of ____________. The claimant appealed, disputing the hearing officer’s determination that the preponderance of the evidence is not contrary to the IRO decision. The respondent (carrier) responded, urging affirmance.
DECISION
Reversed and remanded for reconstruction of the record.
Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The CCH was recorded on one compact disc (CD). The CD indicated it contained one track which was approximately one hour and five minutes in length. The CD is completely inaudible. The file indicates that there was no court reporter and the file does not contain a transcript or a tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is ACE AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Margaret L. Turner
CONCUR:
Cynthia A. Brown
Appeals Judge
Thomas A. Knapp
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 24, 2010. The sole disputed issue before the hearing officer was:
Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that the appellant (claimant) is not entitled to a lumbar laminectomy with fusion and instrumentation at L4-5 and L5-S1 and a thoracic-lumbar-sacral orthosis back brace for the compensable injury of __________?
The hearing officer determined that the preponderance of the evidence is not contrary to the decision of the IRO that the claimant is not entitled to a lumbar laminectomy with fusion and instrumentation at L4-5 and L5-S1 and a thoracic-lumbar-sacral orthosis back brace for the compensable injury of __________. The claimant appealed the hearing officer’s determination based on sufficiency of the evidence. The respondent (self-insured) responded, urging affirmance.
DECISION
Reversed and remanded for reconstruction of the record.
Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The appeal file contains one compact disc (CD). The CD is approximately 47 minutes and 18 seconds long but has no sound. The appeal file does not indicate a court reporter was present and the file does not contain a transcript or other recording. Consequently, we remand the case for reconstruction of the CCH record. See Appeals Panel Decision (APD) 100365, decided April 27, 2010.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is
(NAME)
(ADDRESS)
(CITY), TEXAS (ZIP CODE).
Veronica L. Ruberto
CONCUR:
Thomas A. Knapp
Appeals Judge
Margaret L. Turner
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 10, 2010.[1] Regarding the sole disputed issue, the hearing officer determined that the preponderance of the evidence is contrary to the Independent Review Organization’s (IRO) decision. The appellant (self-insured) appealed the hearing officer’s IRO decision. Additionally, the self-insured asserts that the hearing officer abused her discretion in admitting the respondent’s (claimant) evidence which was not timely exchanged. The self-insured states that the hearing officer’s evidentiary ruling resulted in an improper judgment. The claimant responded, urging affirmance.
DECISION
Reversed and rendered.
EVIDENTIARY RULING/
DISCOVERY IN AN EXPEDITED CCH
To obtain a reversal of a judgment based upon the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles. Appeals Panel Decision (APD) 043000, decided January 12, 2005; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).
This is a spinal surgery case and an expedited CCH was set for September 28, 2009. See Section 413.031(l) and 28 TEX. ADMIN. CODE § 133.308(u) (Rule 133.308(u)). Rule 142.13(g) provides that the notice setting an expedited hearing, or a hearing held without a prior benefit review conference (BRC), shall include time limits for completion of discovery. The preamble to Rule 142.13 states that this rule was amended to add a new subsection (g), which provides that the notice setting an expedited hearing, or hearing held without a prior BRC, shall include time limits for conducting prehearing discovery, and that the amendment is necessary to inform parties of this exception to the usual time limits for prehearing discovery set out in the 1989 Act. (17 Tex. Reg. 949, 1992). In APD 972286, decided December 22, 1997, the Appeals Panel stated under Rule 142.13(g), parties had until a certain date, “to exchange items that were intended to be offered into evidence.” In evidence is an “Order Setting [CCH] on an [IRO]” dated September 9, 2009, which states the date, time and location of the CCH, however, it does not state the time limits for completion of discovery, pursuant to Rule 142.13(g).
The hearing officer commented at the CCH that the claimant’s failure to exchange documentation with the self-insured was attributed to the ombudsman[2] and the claimant’s evidence is crucial to the determination of the issue in dispute, and she stated that for those reasons the claimant showed good cause for the untimely exchange of documentation. The hearing officer’s reasoning is not good cause for the claimant’s untimely exchange. However, because the order setting an expedited CCH did not include time limits for completion of discovery, the hearing officer’s admission of the claimant’s evidence was not reversible error.
THE IRO DECISION
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. Section 401.011(22-a) defines “[h]ealth care reasonably required” 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: (A) evidence-based medicine; or (B) if that evidence is not available, generally accepted standards of medical practice recognized in the medical community. Section 401.011(18-a) defines “[e]vidence-based medicine” as 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 in making decisions about the care of individual patients. Rule 133.308(t) provides that in a 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 parties stipulated that: (1) the claimant sustained a compensable lumbar spine injury on ____________, and (2) the IRO decision determined that the claimant should not have spinal surgery as recommended. The IRO decision dated August 20, 2009, upheld the self-insured’s denial of the requested surgical procedure which was a “[r]evision lumbar laminectomy, discectomy, arthrodesis with cages, posterior instrumentation, and implantation of a bone growth stimulator at L3, L4, and L5” with inpatient length of stay (LOS) for two days. The screening criteria or other clinical basis used by the IRO to make the decision was identified as: (1) medical judgment, clinical experience and expertise in accordance with accepted medical standards; (2) Milliman Care Guidelines; and (3) the Official Disability Guidelines-Treatment in Workers’ Comp published by Work Loss Data Institute (ODG) for spinal discectomy/laminectomy and spinal fusion. The IRO decision attached a portion of the ODG for spinal fusion entitled “Pre-Operative Surgical Indications Recommended” which provides that pre-operative clinical surgical indications for spinal fusion should include all of the following:
(1) All pain generators are identified and treated; & (2) All physical medicine and manual therapy interventions are completed; & (3) X-rays demonstrating spinal instability and/or myelogram, CT-myelogram, or discography (see discography criteria) & MRI demonstrating disc pathology; & (4) Spine pathology limited to two levels; & (5) Psychosocial screen with confounding issues addressed[; &] (6) For any potential fusion surgery, it is recommended that the injured worker refrain from smoking for at least six weeks prior to surgery and during the period of fusion healing.
The IRO decision stated that based on the information reviewed the requested “revision fusion with fusion of two above levels” cannot be justified as medically necessary because: (1) “[t]wo previous practitioners have indicated that the claimant’s prior L5-S1 fusion has healed;” (2) “[i]t is not clear from the records provided if the claimant has instability on dynamic flexion/extension views;” (3) “[t]hough a psychological evaluation was recommended at one point, records do not indicate that one has been performed;” and (4) “[t]he records are not clear what type of nonoperative conservative treatment has been rendered.” Further, the IRO states that “[f]or all of these reasons, the surgical request does not currently meet appropriate ODG criteria for the requested surgery.”
In the Background Information section of the decision, the hearing officer states that the “IRO reviewer correctly applied the criteria set out in the ODG for the requested spinal surgery procedures which are set out in the IRO decision in evidence.” However, the hearing officer found that the claimant does meet the ODG criteria as a candidate for a revision lumbar laminectomy, discectomy, arthrodesis with cages, posterior instrumentation and implantation of a bone growth stimulator at L3, L4 and L5 with inpatient LOS for two days as recommended by the claimant’s treating surgeon. The hearing officer relied on (Dr. Z), the treating surgeon, medical report dated March 10, 2010, in which he references medical records that were not in existence at the time of the IRO decision, August 20, 2009.
In evidence is Dr. Z’s medical report dated March 8, 2010, in which he disagrees with the IRO decision and responds to the screening criteria used by the IRO to make a decision. Dr. Z addresses the IRO statement regarding a psychological evaluation and he states that the claimant underwent a pre-surgery psychological evaluation on October 7, 2009. The hearing officer correctly points out in her decision that the claimant had the psychological evaluation after the IRO decision.
Rule 133.308(l) provides that the carrier or the carrier utilization review agents (URA) shall submit the documentation required in paragraphs (1)-(6) of this subsection to the IRO not later than the third working day after the date the carrier reviews the notice of the IRO assignment.[3]Further, Rule 133.308(m) provides that the IRO shall request additional necessary information from either party or from other providers whose records are relevant to the review. In a public comment to Rules 133.308(l) and (m), the commenter states that denials need to be based on current medical records, and that it is the responsibility of the reviewing physician to make sure that he has been provided with such information when he performs the review. The Texas Department of Insurance, Division of Workers’ Compensation’s (Division) response states that it “agrees in part and disagrees in part . . . . The Division agrees that reviews need to be based on current medical records, but does not believe that changes to the rule are necessary to accomplish this” and references Rule 133.308(m). (See 33 Tex. Reg. 3985, 2008). Also, Rule 133.308(p)(1)(A-B) provides that the IRO decision must include: a list of all the medical records and other documents reviewed by the IRO, including the dates of those documents and, a description and the source of the screening criteria or other clinical basis used to make the IRO decision. (See Rule 133.308(p)(1)(A-F)).[4]
In the instant case, the pre-surgery psychological evaluation was performed on October 7, 2009, after the IRO decision. The IRO determined that the spinal surgery request did not currently meet appropriate ODG criteria for the requested surgery. Specifically, the IRO determined, in part, that the spinal surgery request did not include the following pre-operative clinical surgical indication: “[p]sychosocial screen with confounding issues addressed.” At the time of the IRO decision on August 20, 2009, the medical records reviewed by the IRO did not meet the ODG criteria for spinal surgery.
The claimant failed to present evidence consistent with the requirement of Section 401.011(22-a) to establish that the preponderance of the evidence is contrary to the decision of the IRO dated August 20, 2009. We reverse the hearing officer’s decision that the preponderance of the evidence is contrary to the decision of the IRO and render a new decision that the preponderance of the evidence is not contrary to the decision of the IRO.
The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is
DR. JJ, SUPERINTENDENT
(ADDRESS)
(CITY), TEXAS (ZIP CODE).
Veronica L. Ruberto
CONCUR:
Thomas A. Knapp
Appeals Judge
Margaret L. Turner
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 28, 2009. With regard to the only issue before her the hearing officer determined that the preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that the respondent (claimant) is entitled to an L4-5 and L5-S1 laminectomy, posterior spinal instrumentation fusion (PSIF) with assistant surgeon and 3-day hospital stay for the compensable _________, injury.
The appellant (carrier) appeals, contending that the claimant failed to meet at least two of the pre-operative surgical indications of the Official Disability Guidelines (ODG). The claimant responds, urging affirmance.
DECISION
Reversed and a new decision rendered.
The parties stipulated that the claimant sustained a compensable lumbar sprain/strain injury on _________. The medical evidence indicated that the claimant’s back condition had been treated with epidural steroid injections, physical therapy and conservative medical care. The claimant’s treating doctor, (Dr. S), diagnosed the claimant with instability at L4-5 and recommended spinal fusion at L4-5 and L5-S1. The IRO recommended approval of the requested procedure. In evidence was a section of the ODG Procedure Summary for spinal surgery which stated in part Patient Selection Criteria for Lumbar Spinal Fusion, Pre-Operative Surgical Indications Recommended, and Patient Selection Criteria for Lumbar Spinal Fusion.
Section 408.021 provides in part 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. Section 401.011(22-a) defines “[h]ealth care reasonably required” 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: (A) evidence-based medicine; or (B) if that evidence is not available, generally accepted standards of medical practice recognized in the medical community. Section 401.011(18-a) defines “[e]vidence-based medicine” as 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 in making decisions about the care of individual patients. 28 TEX. ADMIN. CODE § 133.308(t) (Rule 133.308(t)) provides in part that in a CCH, the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medicine.
The hearing officer and the IRO quoted extensively from the ODG. The ODG provided under patient selection criteria, that segmental instability may be an indication for spinal fusion but such segmental instability must be objectively demonstrable. The portion of the ODG specifically litigated at the CCH is entitled “Pre-Operative Surgical Indications Recommended” and provides that pre-operative clinical surgical indications for spinal fusion should include all of the following:
(1) All pain generators are identified and treated; & (2) All physical medicine and manual therapy interventions are completed; & (3) X-rays demonstrating spinal instability and/or myelogram, CT-myelogram, or discography (see discography criteria) & MRI demonstrating disc pathology; & (4) Spine pathology limited to two levels; & (5) Psychosocial screen with confounding issues addressed[; &] (6) For any potential fusion surgery, it is recommended that the injured worker refrain from smoking for at least six weeks prior to surgery and during the period of fusion healing.
The ODG, under pre-operative surgical indications, provides for psychosocial screen with confounding issues addressed. None of the reports, or the IRO decision, referenced any psychosocial screening. The hearing officer recited the provision for a psychosocial screening but does not further comment on it or the absence of a psychosocial screening.
The IRO report in evidence listed the information provided to it for review. That information did not include flexion/extension x-rays or a psychosocial screening. Rather, the IRO relied on Dr. S’s March 30, 2009, and April 27, 2009, reports and concluded in part that:
The claimant has evidence of 1 cm of translation at the L4-L5 level on flexion/extension x-rays per [Dr. S’s] report on 4-7-09 [sic 4-27-09].
* * * *
The appropriate surgical management of this case would be the recommended fusion at L4/L5 and L5/S1. Claimant has the signs and symptoms of instability. The L5/S1 instability has been documented by flexion/extension x-rays.
* * * *
Both of Dr. S’s reports dated March 30, 2009, and April 27, 2009, were in evidence. Dr. S, in a report dated March 30, 2009, referenced lateral flexion and extension x-rays “which reveals a grade 1 dynamic L4-5 degenerative spondylolisthesis that translates approximately 1 cm forward and backward with flexion and extension. She has mild loss of disc height at L5-S1.” In a report dated April 27, 2009, Dr. S stated: “[t]his patient has dynamic instability on flexion and extension at L4-5. She has approximately 1 cm of translation which I think is significant.”
The hearing officer commented that both the IRO and (Dr. D), a carrier utilization reviewer, rely upon the ODG in reaching their conclusions. The hearing officer and the IRO referred to Dr. S’s April 27, 2009, report which stated that x-ray results were not noted and which only referenced instability on flexion and extension at L4-5. The hearing officer determined that the preponderance of the evidence-based medical evidence was not contrary to the IRO’s decision in this case. The carrier contends that L5-S1 instability has not been documented by flexion/extension x-rays. Dr. D testified that there were no flexion/extension x-rays showing instability at L5-S1 and that he did not believe the proposed surgery was medically reasonable and necessary because the claimant did not meet the ODG guidelines showing lumbar instability, particularly at the L5-S1 level.
The carrier, in this case, presented evidence consistent with the requirements of Section 401.011(22-a) that the preponderance of the evidence is contrary to the decision of the IRO. As previously noted, none of the reports or IRO decision referenced any psychosocial screening. Accordingly, we hold that the preponderance of the evidence is contrary to the decision of the IRO because the requirements of the ODG were not met.
We reverse the hearing officer’s determination that the preponderance of the evidence is not contrary to the decision of the IRO and that the claimant is entitled to an L4-5 and L5-S1 laminectomy, PSIF with assistant surgeon and 3-day hospital stay for the compensable _________, injury and render a new decision that the preponderance of the evidence is contrary to the decision of the IRO and that the claimant is not entitled to an L4-5 and L5-S1 laminectomy, PSIF with assistant surgeon and 3-day hospital stay for the compensable _________, injury.
The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
701 BRAZOS STREET, SUITE 1050
AUSTIN, TEXAS 78701.
Thomas A. Knapp
CONCUR:
Veronica L. Ruberto
Appeals Judge
Margaret L. Turner
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 5, 2008. The hearing officer resolved the disputed issue by deciding that the preponderance of the evidence is contrary to the decision of the Independent Review Organization (IRO) that the respondent (claimant) is not entitled to a transforaminal interbody fusion with a two day length of stay (LOS) for the compensable injury of ___________.
The appellant (carrier) appealed, contending that the hearing officer’s decision is not based on evidence-based medicine and Official Disability Guidelines-Treatment in Workers’ Compensation published by Work Loss Data Institute (ODG) guidelines. The appeal file does not contain a response from the claimant.
DECISION
Reversed and rendered.
The parties stipulated that the claimant sustained a compensable spinal injury on ___________, and that the IRO determined that the claimant should not have spinal surgery. In evidence is a section of the ODG Procedure Summary for spinal surgery which specifies Patient Selection Criteria for Lumbar Spinal Fusion, Pre-Operative Surgical Indications and Patient Selection Criteria for Lumbar Spinal Fusions. The evidence established that the claimant’s back condition has been treated with epidural steroid injections, physical therapy (which was discontinued because of pain) and medication.
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. Section 401.011(22-a) defines “[h]ealth care reasonably required” 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: (A) evidence-based medicine; or (B) if that evidence is not available, generally accepted standards of medical practice recognized in the medical community. Section 401.011(18-a) defines “[e]vidence-based medicine” as 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 in making decisions about the care of individual patients. 28 TEX. ADMIN. CODE § 133.308(t) (Rule 133.308(t)) provides that in a CCH, the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medicine.
Dr. S, the doctor proposing the surgery, in a report dated August 10, 2007, stated that an “MRI examination shows an L5-S1 disc herniation with decreased disc space” and recommends the L5-S1 transforaminal lumbar interbody fusion. In a report dated May 2, 2008, Dr. S noted “MRI examination once again shows a [desiccated] disc at L5-S1 with protrusion (herniation) with a collapsed disc space at L5-S1” and diagnosed traumatic disc herniation with failed conservative management. Both of Dr. S’s reports dated August 10, 2007, and May 2, 2008, indicate that the claimant was taking Skelaxin, Hydrocodone and other medication. Dr. S in a report dated June 26, 2008, again notes “decreased disc height at L5-S1” and a diagnosis of “traumatic disc herniation at L5-S1 with decreased disc height, rendering this particular segment of the lumbar spine unstable.” Dr. S, in his August 10, 2007, report states that the claimant “has been having persistent depression, fragmented sleep disturbances, inappropriate irritability, and persistent anxiety.”
The hearing officer, in her Background Information cited Dr. S’s testimony as saying that he “cited literature as to why the proposed surgery was conservative treatment for the Claimant . . . .” Dr. S testified that he did not agree with the carrier’s doctors and the IRO and cited an “AMA study” by Anderson. That study is not in evidence and no specific citation to the study is given. The hearing officer further commented that Dr. S “also testified that he personally reviewed the MRI scans and his opinion was credible when he opined that the Claimant suffers from loss of disc height and does suffer from instability at L5-S1.” The hearing officer then found that the transforaminal interbody fusion with a two day LOS is health care reasonably required and that preponderance of the evidence is contrary to the decision of the IRO.
The only MRI in evidence is a MRI of the lumbar spine dated July 3, 2007, which states “Vertebral body height is well maintained. Intervertebral disc space height is preserved with mild desiccation of the L5-S1 intervertebral disc.” The impression was L5-S1 shallow right paracentral and subarticular disc protrusion impinging on the right S1 nerve root. Dr. S testified at the CCH and when asked about the difference in his interpretation of the lumbar MRI and that of the radiologist who had prepared the report, Dr. S stated he had reviewed the actual MRI film and he disagreed with the radiologist. Flexion/extension X-rays of the lateral lumbar spine, performed on June 26, 2008, indicate the disc “interspaces are adequately maintained” and no subluxation or dislocation is seen with flexion or extension. Dr. B, a board certified neurosurgeon testified at the CCH that the medical records do not indicate a loss of disc height or segmental instability in the claimant’s spine. Dr. B testified that he did not believe the proposed surgery was medically reasonable and necessary because the claimant did not meet the ODG guidelines showing lumbar instability.
The ODG’s patient selection criteria for spinal fusion states that indications for spinal fusion may include objectively demonstrable segmental instability and the pre-operative surgical indications should include “[a]ll pain generators are identified and treated,” “X-rays demonstrating spinal instability and/or myelogram, CT-myelogram, or discography . . . & MRI demonstrating disc pathology” and psychosocial screen with confounding issues addressed. Regarding the psychosocial screen, no separate psychological evaluation is in evidence. Dr. S testified that he did a psychological evaluation in conjunction with his over-all evaluation. Dr. S testified that his psychological evaluation consisted of asking 12 questions during his examination, in conjunction with his over-all evaluation.
Dr. PG, a carrier peer review doctor, in a report dated ___________, noted one of the indicators for fusion is instability and that “instability should be documented by objectified methods.” Dr. PG further noted that Dr. S “has failed to demonstrate instability in the claimant’s lumbar spine which obviates the need for fusion.” Dr. DG, another carrier peer review doctor, in a report dated June 9, 2008, notes that there is “no evidence of spondylolisthesis or instability on flexion/extension films. No psychological evaluation is documented.” Dr. DG does go on to state that “it appears that a simple decompression at the L5-S1 level may be indicated; however, there is no medical necessity for the proposed transforaminal interbody fusion.”
The ODG provides under patient selection criteria, that segmental instability may be an indication for spinal fusion but such segmental instability must be objectively demonstrable. Also, the ODG, under pre-operative surgical indications, provides for “Psychosocial screen with confounding issues addressed.” (Emphasis in the original.) None of Dr. S’s reports address a psychosocial screen or address the claimant’s depression noted in Dr. S’s May 10, 2007, report.
In Appeals Panel Decision 080812-s, decided July 25, 2008, the hearing officer found that the spinal surgery was medically necessary treatment for the claimant’s injury and determined that the preponderance of the evidence is contrary to the decision of the IRO. The Appeals Panel reversed the hearing officer’s decision and rendered a new decision that the preponderance of the evidence is not contrary to the decision of the IRO. The Appeals Panel held that the claimant failed to present evidence consistent with the requirements of Section 401.011(22-a) to establish that the preponderance of the evidence is contrary to the decision of the IRO. Likewise in this case, the claimant failed to present evidence consistent with the requirement of Section 401.011(22-a) to establish that the preponderance of the evidence is contrary to the decision of the IRO.
We reverse the hearing officer’s decision that the preponderance of the evidence is contrary to the decision of the IRO and render a new decision that the preponderance of the evidence is not contrary to the decision of the IRO.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. RUSSELL R. OLIVER, PRESIDENT
6210 EAST HIGHWAY 290
AUSTIN, TEXAS 78723.
Thomas A. Knapp
CONCUR:
Veronica L. Ruberto
Appeals Judge
Margaret L. Turner
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 10, 2008. The hearing officer resolved the disputed issue by deciding that the preponderance of the evidence is contrary to the decision of the Independent Review Organization (IRO) that the lumbar decompression at L5-S1 with fusion “is not health care reasonably required for the compensable injury of __________.” The appellant (carrier) appealed, arguing that the evidence does not support the hearing officer’s decision. The carrier also contends that the hearing officer failed to weigh the evidence based upon evidence-based medicine standards. The appeal file does not contain a response from the respondent (claimant).
DECISION
Reversed and rendered.
The parties stipulated that the claimant sustained a compensable spinal injury on __________, and that the IRO determined that the claimant should not have spinal surgery.
The screening criteria or other clinical basis used by the IRO to make the decision was identified as the Official Disability Guidelines-Treatment in Workers’ Comp published by Work Loss Data Institute (ODG). In evidence is a section of the ODG, Procedure Summary for spinal fusion which specifies patient selection criteria, clinical criteria, or other treatment plan that should be applied or considered along with a summary of supporting medical evidence.
The IRO decision by an orthopedic surgeon dated July 9, 2008, upheld the carrier’s denial of the requested surgical procedure which included lumbar decompression at L5-S1 with fusion, and noted that the claimant had been denied this surgery by the carrier on at least two prior occasions. The IRO stated that “based upon the objective physical findings and information in the medical records, that the [claimant] does not meet any of the selection criteria for lumbar spinal fusion.” Further, the IRO states that “[t]he preoperative surgical indications are not met as cited by [ODG] criteria. It is unclear, despite the extensive evaluation and treatment that this [claimant] has undergone, exactly what is the source of his pain. In addition, there is no objective evidence of any spinal instability.”
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. Section 401.011(22-a) defines “[h]ealth care reasonably required” 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: (A) evidence-based medicine; or (B) if that evidence is not available, generally accepted standards of medical practice recognized in the medical community. Section 401.011(18-a) defines “[e]vidence-based medicine” as 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 in making decisions about the care of individual patients. 28 TEX. ADMIN. CODE § 133.308(t) (Rule 133.308(t)) provides that in a CCH, the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medicine.
In evidence is a lumbar spine x-ray completed on June 6, 2006, which shows “[m]inor lumbar degenerative change possibly with slight muscle spasm on the left.” Also, an MRI of the lumbar spine dated September 5, 2006, shows, in part, central spinal canal and lateral recess stenosis on the right side at L5-S1 level and no evidence of spondylolysis or spondylolisthesis. In a medical report dated September 25, 2006, Dr. K states that the EMG study of the lower extremities is normal and that “[t]here was no evidence of any radicular process seen (lumbar radiculopathy).” The claimant underwent a lumbar discogram at L3-4, L4-5 and L5-S1 on March 7, 2007. The surgeon states in the report that no pain was noted at L3-4 and L4-5, and that “[i]nterestingly, the [claimant] did not notice an increase in his pain with the injection at L5-S1.” However, the medical reports show that the claimant underwent a lumbar facet joint injection at L2-3 and L3-4 on June 26, 2007, and he underwent an epidural steroid injection (ESI) at L5-S1 on January 31, 2008. In a medical report dated February 27, 2008, the treating doctor, Dr. H, notes the discogram performed on March 7, 2007, showed that the claimant “had no pain elicited at any of the lower 3 intervertebral discs” but that the claimant continues with symptoms of low back and right leg that are “emanating from lateral recess stenosis at L5, facet hypertrophy, and foraminal stenosis, but with good maintenance of disc space height at L5-S1 and the other levels.” In evidence is a Request for a Review by an IRO dated June 20, 2008, requesting a review of a surgery, lumbar decompression at L5-S1 with fusion, which was denied by the carrier.
The hearing officer specifically found that the requested lumbar decompression at L5-S1 and fusion is health care reasonably required for the compensable injury of __________, and that the claimant does meet the ODG guidelines for patient selection criteria and all the of the recommendations for pre-operative surgical indications. In the Background Information section of the decision, the hearing officer states that the claimant meets the “ODG criteria for the decompression/fusion” because “[d]espite some conflicting discogram information, an L5-S1 diagnostic ESI cleared up that uncertainty and identified L5-S1 as the only significant pain generator.” Further, the hearing officer states that “[t]here is no demonstrated spinal instability, but that is not disqualifying.”
As previously mentioned, the IRO determined that the claimant did not meet any of the patient selection criteria for lumbar spinal fusion “based upon the objective physical findings and information in the medical records.” Additionally, the IRO determined that “there is no objective evidence of any spinal instability.” The ODG states that in cases of workers’ compensation “there remains insufficient evidence to recommend fusion for chronic low back pain in the absence of stenosis and spondylolisthesis, and this treatment for this condition remains ‘under study.’” The ODG states that “a negative discogram could rule out the need for fusion on that disc (but a positive discogram in itself would not justify fusion).” Dr. H noted that the discogram of March 7, 2007, showed that the claimant “had no pain elicited at any of the lower 3 intervertebral discs.” Also, the ODG provides under patient selection criteria, that segmental instability may be an indication for spinal fusion but such segmental instability must be objectively demonstrable. There is no evidence of segmental instability.
In Appeals Panel Decision (APD) 080812-s, decided July 25, 2008, the hearing officer found that the spinal surgery was medically necessary treatment for the claimant’s injury and determined that the preponderance of the evidence is contrary to the decision of the IRO. The Appeals Panel reversed the hearing officer’s decision and rendered a new decision that the preponderance of the evidence is not contrary to the decision of the IRO. The Appeals Panel held that the claimant failed to present evidence consistent with the requirements of Section 401.011(22-a) to establish that the preponderance of the evidence is contrary to the decision of the IRO. In this case, as in APD 080812-s, the claimant failed to present evidence consistent with the requirements of Section 401.011(22-a) to establish that the preponderance of the evidence is contrary to the decision of the IRO.
We reverse the hearing officer’s decision that the preponderance of the evidence is contrary to the decision of the IRO and render a new decision that the preponderance of the evidence is not contrary to the decision of the IRO.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. RUSSELL R. OLIVER, PRESIDENT
6210 EAST HIGHWAY 290
AUSTIN, TEXAS 78723.
Veronica L. Ruberto
Appeals Judge
CONCUR:
Thomas A. Knapp
Appeals Judge
Margaret L. Turner
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 29, 2008. The hearing officer resolved the disputed issue by deciding that the preponderance of the evidence is contrary to the decision of the Independent Review Organization (IRO). The appellant (carrier) appealed, arguing that the evidence does not support the hearing officer’s decision. The carrier also contends that the hearing officer failed to consider the requirement of evidence-based medicine guidelines. The respondent (claimant) responded, urging affirmance.
DECISION
Reversed and rendered.
The parties stipulated that the claimant sustained a compensable spinal injury on ____________, and that the IRO determined that the claimant should not have spinal surgery. The evidence reflects that the claimant underwent lumbar spinal surgery prior to her compensable injury. The claimant had additional lumbar spinal surgeries after her compensable injury. In evidence is an operative report dated February 2, 2000, which describes the procedure performed as a revision lumbar laminectomy with excision of a herniated nucleus pulposus and foraminotomy on the right at L5-S1. Also in evidence is an operative report dated May 22, 2003, that describes the procedure performed as a revision right lumbar hemilaminectomy, foraminotomy and nerve root decompression on both the right and left at L5-S1 as well as a fusion at L5-S1. The record reveals that the claimant’s back condition has also been treated with epidural steroid injections, physical therapy, and medication.
The IRO decision by an orthopedic surgeon dated February 10, 2008, upheld the carrier’s denial of the requested surgical procedure which included fusion of L4-5 and L5-S1, and noted that the claimant had been denied this surgery through the workers’ compensation system on at least three prior occasions, June 6, 2006, December 14, 2007, and January 14, 2008. The IRO stated that the claimant had failed back syndrome and listed the factors which indicated a poor result which included multiple surgeries, previous failures to achieve even six months of relief, and surgery within the compensation system. The screening criteria or other clinical basis used by the IRO to make the decision was identified as the Official Disability Guidelines-Treatment in Workers’ Comp published by Work Loss Data Institute (ODG).[1] The ODG specifically lists prior low back operations and surgery in the workers’ compensation system as predictors of poor results from the surgery. Additionally, the ODG provides that segmental instability may be an indication for spinal fusion but such segmental instability must be objectively demonstrable. The ODG states that revision surgery for purposes of pain relief must be approached with extreme caution due to the less than 50% success rate reported in medical literature.
The carrier cited former rule 28 TEX. ADMIN. CODE § 133.308(w) (Rule 133.308(w)),[2] which provided that in all appeals from review of prospective or retrospective necessity disputes, the IRO decision has presumptive weight.[3] In Appeals Panel Decision (APD) 021958-s, decided September 16, 2002, the Appeals Panel held that the presumptive weight provision in Rule 133.308(v) (later redesignated as Rule 133.308(w)) is an evidentiary rule which creates a rebuttable presumption, as distinguished from a conclusive presumption; that the IRO decision is the decision which should be adopted, unless rebutted by contrary evidence. The Appeals Panel has held that whether an IRO decision is supported by a preponderance of the evidence involves a fact issue for the hearing officer to resolve as the sole judge of the weight and credibility of the evidence. APD 032359, decided October 21, 2003.
However, 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. Section 401.011(22-a) defines “[h]ealth care reasonably required” 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: (A) evidence-based medicine; or (B) if that evidence is not available, generally accepted standards of medical practice recognized in the medical community. Section 401.011(18-a) defines “[e]vidence-based medicine” as 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 in making decisions about the care of individual patients.
The claimant’s treating doctor, Dr. F, testified at the CCH that the proposed surgery would alleviate the claimant’s back and leg pain. Further, the claimant’s treating doctor testified that in his opinion the claimant had vertical instability and met the criteria in the ODG for the proposed surgical procedure. The treating doctor acknowledged that the chance of success is lower in relation to the number of previous procedures but he was confident that he can achieve a good result for the claimant. Dr. T, an orthopedic surgeon, testified on behalf of the carrier. Dr. T testified that he is not aware of any article which was published in English literature which defines any parameters of vertical instability. Dr. T contends that this concept is investigational and without scientific basis. Dr. F explained what he meant by vertical instability but he did not cite any authority for the concept. Dr. T testified that the medical evidence reveals that the claimant has had inconsistency with her imaging studies and with what her symptoms and signs show.
The hearing officer specifically found that spinal surgery is medically necessary treatment for the claimant’s spinal injury. Dr. F testified that the post-lumbar myelogram CT confirmed that the claimant had a fusion that was not healed. However, the post-lumbar myelogram CT which he relied on was dated May 12, 2004. Dr. T testified that it is not the standard of care to rely on such a diagnostic test performed in 2004 to propose a surgical procedure in 2008. Dr. T testified citing a published study performed by Brux that took people whose spinal surgery failed and were then treated with the biopsychosocial approach. Dr. T testified that the people who were treated with the biopsychosocial approach did better than those that underwent another operation. The hearing officer’s decision is against the great weight and preponderance of the evidence and requires reversal. The claimant failed to present evidence consistent with the requirements of Section 401.011(22-a) to establish that the preponderance of the evidence is contrary to the decision of the IRO.
We reverse the hearing officer’s decision that the preponderance of the evidence is contrary to the decision of the IRO and render a new decision that the preponderance of the evidence is not contrary to the decision of the IRO.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. RUSSELL R. OLIVER, PRESIDENT
6210 EAST HIGHWAY 290
AUSTIN, TEXAS 78723.
Margaret L. Turner
Appeals Judge
CONCUR:
Cynthia A. Brown
Appeals Judge
Veronica L. Ruberto
Appeals Judge
This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 22, 2005. The only issue before the hearing officer was “Is the [Independent Review Organization (IRO)] decision supported by a preponderance of the evidence?” With regard to that issue the hearing officer determined that the appellant’s (claimant) compensable injury of _________, does not include urinary incontinence or herniation at L5-S1 and that the IRO decision was supported by a preponderance of the evidence.
The claimant appealed, contending that the documented evidence supports the necessity of the requested spinal surgery and that the hearing officer’s determinations regarding incontinence and disc herniations amounted to an impermissible addition of an extent-of-injury issue which was beyond the sole issue before him. The respondent (carrier) responds, urging affirmance.
DECISION
Affirmed in part and reversed and rendered in part.
It is undisputed that the claimant sustained a compensable lumbar injury on _________. In evidence is a Benefit Dispute Agreement (TWCC-24) dated October 2003 whereby the “parties agree the claimant’s compensable injury extends to and includes her lumbar spine.” There was apparently no further effort to define the extent of the compensable injury. The claimant contends that “the carrier had never contested the nature and extent of the lumbar spine injury.”
The IRO decision, dated July 22, 2005, upheld the denial of the requested surgical procedure “as the current clinical history is inconsistent with clinical picture clearly documented for several months after her injury.” The IRO cited certain inconsistencies such as early complaints being of the right sacroiliac area and only later were left sciatica complaints noted. An MRI was interpreted differently by the doctors and the IRO concluded that the “MRI study does not reveal a surgical lesion.” The IRO concluded that the requested surgery is inconsistent with accepted standards. There were conflicting medical opinions on whether the claimant had a disc herniation or merely a bulge. The IRO decision, and the hearing officer’s decision on the only issue before him, being whether the IRO decision was supported by a preponderance of the evidence, is supported by the evidence. The hearing officer’s decision on this issue is affirmed.
The hearing officer at the CCH recognized that the extent of the compensable injury had not been fully delineated and asked “Do I have to make an extent of injury determination with respect [inaudible] to the IRO?” The carrier replied “yeah, it seems like you would” and requests addition of an issue of whether the compensable injury includes disc herniation at L5-S1, or whether the compensable injury includes findings of the MRI. The claimant objected, stating that the hearing officer was not required to make an extent-of-injury determination but that the hearing officer had to determine if the medical records were sufficient to support the IRO decision.
The hearing officer in the discussion portion of his decision comments that the claimant “failed to establish that her compensable injury included urinary incontinence” and that “[h]erniation at [L5-S1] has not been established, nor is the medical [evidence] consistent in its conclusion about the level of the pain generator.” The hearing officer made specific determinations that the lumbar injury does not include urinary incontinence, does not include herniation at L5-S1, and that the L5-S1 “pain generator was not reasonably established.” The claimant’s appeal “objects to the superflous findings . . . .” We agree.
The only issue before the hearing officer was whether the IRO decision was supported by a preponderance of the evidence, not whether the claimant had a burden to establish causation for any urinary incontinence, or whether the disc bulge at L5-S1 was a herniation or what the claimant’s pain generator was. Those may have been factors for the IRO to consider but do not warrant specific determinations by the hearing officer on an extent-of-injury issue. We agree that the nature and extent of injury should have been resolved prior to going to the IRO. In this regard we note that 28 TEX. ADMIN. CODE § 133.308 (Rule 133.308) entitled “Medical Dispute Resolution by [IROs]” in Rule 133.308(f)(7) provides that:
(7)if the carrier has raised a dispute pertaining to liability for the claim, compensability, or extent of injury, in accordance with § 124.2 of this title (relating to Carrier Reporting and Notification Requirements), the request for an IRO will be held in abeyance until those disputes have been resolved by a final decision of the commission [Texas Department of Insurance, Division of Workers’ Compensation].
In Appeals Panel Decision (APD) 030805 decided May 15, 2003, the Appeals Panel held that it does not read Rule 133.308(f)(7) as creating a carrier waiver. By the same token APD 030805 did have an extent-of-injury issue where this case does not. The hearing officer at the CCH asked if he had to make an extent-of-injury determination to resolve the case. The carrier said yes while the claimant said no. Rule 142.7 provides how issues may be added. Certainly there was no unanimous consent of the parties to add an extent-of-injury issue and the record indicates no basis for the hearing officer to find good cause to add such an issue.
The IRO decision is a doctor’s opinion in ruling whether spinal surgery is reasonable and necessary based on the medical records. An extent-of-injury issue is not determined by the spinal surgery preauthorization process. The hearing officer erred in making determinations that the compensable injury does not include urinary incontinence, does not include herniation at L5-S1, and that L5-S1 as the pain generator was not reasonably established, thereby exceeding the scope of the issue before him. See APD 990164 decided March 15, 1999. We reverse the hearing officer’s decision that the compensable injury does not include urinary incontinence, does not include herniation at L5-S1, and that L5-S1 as the pain generator was not reasonably established. We render a new decision striking Findings of Fact Nos. 5, 6 and 7, Conclusion of Law No. 4, and so much of the decision portion which states that the claimant’s compensable injury of _________, does not include urinary incontinence or herniation at L5-S1.
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
800 BRAZOS, SUITE 750, COMMODORE 1
AUSTIN, TEXAS 78701.
Thomas A. Knapp
CONCUR:
Robert W. Potts
Appeals Judge
Margaret L. Turner
Appeals Judge
This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 8, 2005. The hearing officer resolved the disputed issue by deciding that the Independent Review Organization’s (IRO) decision is supported by a preponderance of the evidence. The appellant (self-insured) appealed, arguing that the IRO decision was fundamentally flawed because it was labeled a “prospective” decision but the respondent’s (claimant) surgery took place prior to the Medical Dispute Resolution Request submitted by the claimant. The claimant responded, urging affirmance of the decision and order. The self-insured subsequently filed a response to the claimant’s response. There being no provision for a reply to a response to a request for review, the additional filing will not be considered. See Sections 410.202 and 410.203(a).
DECISION
Reversed and rendered.
The parties stipulated that the claimant sustained a compensable injury on ____________. The following facts were undisputed: March 8, 2005, the self-insured denied a request for preauthorization of the claimant’s proposed spinal surgery; March 16, 2005, the claimant had spinal surgery; March 17, 2005, the self-insured denied the reconsideration request for the claimant’s spinal surgery and an IRO decision dated July 1, 2005, recommended approval of the spinal surgical procedure.
The decision and order listed the issue for the CCH as “[w]hether the [IRO’s] decision is supported by a preponderance of the evidence?” The parties agreed that was the issue in dispute. However, the self-insured contended at the CCH that the true nature of the dispute was a fee reimbursement dispute and that it was inappropriate to appoint an IRO because the claimant had already had spinal surgery. The self-insured contends on appeal that this was not a prospective necessity dispute but rather was a reimbursement dispute and any appeal should be to the State Office of Administrative Hearings (SOAH). The parties actually litigated an additional issue in this case: whether the appointment of the IRO in this case was still part of the preauthorization process despite the fact that the claimant’s spinal surgery had already been performed. The hearing officer failed to address this issue.
Section 413.014 provides that the Texas Department of Insurance, Division of Workers’ Compensation (Division) by rule shall specify which health care treatments and services require express preauthorization or concurrent review by the insurance carrier and specifically provides that Division rules adopted under this section must provide that preauthorization and concurrent review are required at a minimum for spinal surgery, as provided by Section 408.026. 28 TEX. ADMIN. CODE § 134.600(a)(5) (Rule 134.600(a)(5)) defines preauthorization as prospective approval obtained from the insurance carrier by the requestor or injured employee prior to providing health care treatment or services. Rule 134.600(b)(1) provides in part that the carrier is liable for all reasonable and necessary medical costs relating to the health care listed in subsection (h) or (i) of this section, only when the following situations occur: an emergency, as defined in Rule 133.1 of this title; preauthorization of any health care listed in subsection (h) of this section was approved prior to providing the health care; or when ordered by the Division. Rule 134.600(h)(3) provides that the non-emergency health care requiring preauthorization includes spinal surgery as provided by Texas Labor Code Section 408.026.
Rule 133.305(3) defines prospective necessity disputes as involving a review of the medical necessity of health care requiring preauthorization or concurrent review. It further provides that the dispute is reviewed by an IRO pursuant to Division rules including Rule 133.308. Rule 133.308(u) provides in part that, “[e]xcept with respect to a prospective necessity dispute regarding spinal surgery, a party to a prospective or retrospective necessity dispute may appeal the IRO decision by filing a written request for a SOAH hearing.” Rule 133.308(v) provides that a party to a prospective necessity dispute regarding spinal surgery may appeal the IRO decision by requesting a CCH.
The initial request for preauthorization of the spinal surgery of the claimant was made prior to surgery. However, prior to receiving the response for the reconsideration of the first denial, the surgery was performed. The claimant did not follow the steps provided in the applicable Rules and statutory provisions to obtain preauthorization or Division approval for surgery prior to receiving the spinal surgery. The dispute ceased being a prospective necessity dispute when the claimant received the surgery. The surgery was performed prior to requesting an IRO decision. The IRO decision was not a prospective review. Therefore, we reverse the hearing officer’s determination that the IRO was supported by a preponderance of the evidence, and render a decision that the hearing officer was without authority to rule on the issue of whether the IRO was supported by a preponderance of the evidence when there was no longer a preauthorization issue on spinal surgery to be decided because spinal surgery had already occurred.
The true corporate name of the insurance carrier is CITY OF HOUSTON (a self-insured governmental entity) and the name and address of its registered agent for service of process is
ANNA RUSSELL, CITY SECRETARY
900 BAGBY
HOUSTON, TEXAS 77002.
Margaret L. Turner
CONCUR:
Thomas A. Knapp
Appeals Judge
Veronica L. Ruberto
Appeals Judge