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 adopted thereunder.
A benefit contested case hearing was scheduled for April 16, 2008 but reset to and held on June 25, 2008 to decide the following disputed issue:
Whether the preponderance of the evidence is contrary to the decision of the Independent Review Organization (IR0) that a left shoulder arthroscopy and rotator cuff repair are not reasonable and necessary health care services for the compensable injury of ___?
Claimant appeared and was assisted by MH, ombudsman. Carrier appeared and was represented by RMJ, attorney.
On ___, Claimant sustained a compensable injury to his left shoulder and right ankle when he fell off of a loading dock. Claimant testified that he underwent physical therapy which helped his ankle but not his shoulder. Claimant testified that he has also treated with pain medications and he had one injection but that did not alleviate his pain in his left shoulder. The Claimant underwent an MRI of the left shoulder on June 18, 2007 which revealed a large rotator cuff tear with retraction. Claimant's treating doctor, Dr. S, has recommended a left shoulder arthroscopy and rotator cuff repair which has been denied by the Carrier.
The IRO reviewer, a board certified orthopedic surgeon, recommended that the left shoulder arthroscopy and rotator cuff repair not be authorized. The IRO reviewer's rationale was that the Claimant has a chronic rotator cuff tear and rotator cuff arthropathy. The IRO reviewer concluded that a rotator cuff repair is not indicated for this disease state and that there were other options for the Claimant.
Under the Official Disability Guidelines (ODG), in reference to surgery for rotator cuff repair, the recommendation is:
Repair of the rotator cuff is indicated for significant tears that impair activities by causing weakness of arm elevation or rotation, particularly acutely in younger workers. However, rotator cuff tears are frequently partial-thickness or smaller full-thickness tears. For partial-thickness rotator cuff tears and small full-thickness tears presenting primarily as impingement, surgery is reserved for cases failing conservative therapy for three months. The preferred procedure is usually arthroscopic decompression, but the outcomes from open repair are as good or better. Surgery is not indicated for patients with mild symptoms or those who have no limitations of activities. (Dunn, 2005)
Revision rotator cuff repair: The results of revision rotator cuff repair are inferior to those of primary repair. While pain relief may be achieved in most patients, selection criteria should include patients with an intact deltoid origin, good-quality rotator cuff tissue, preoperative elevation above the horizontal, and only one prior procedure. (Djurasovic, 2001)
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. Section 401.011(22-a)defines health 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.” “Evidence based medicine” is further defined, by Section 401.011(18-a)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 Division of Workers’ Compensation has adopted treatment guidelines under Division Rule 137.100. That rule requires that health care providers provide treatment in accordance with the current edition of the ODG, and treatment provided pursuant to those guidelines is presumed to be health care reasonably required as mandated by the above-referenced sections of the Texas Labor Code. The initial inquiry, therefore, in any dispute regarding medical necessity, is whether the proposed care is consistent with the ODG.
The Claimant offered DWC-73's and a statement from Dr. S that the Claimant has pain and limited range of motion to the left shoulder without response to conservative measures including physical therapy and left shoulder injections. Dr. S opined that the Claimant might benefit from the rotator cuff surgery. Dr. S failed to address the ODG or explain why the proposed surgery would be appropriate considering evidence based medicine. Based on the evidence presented, the Claimant failed to provide evidence based medicine sufficient to contradict the determination of the IRO and the greater weight of the credible evidence is not contrary to the decision of the IRO.
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
- The parties stipulated to the following facts:
A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers' Compensation.
B.On ___, Claimant was the employee of (Employer) when he sustained a compensable injury.
CONCLUSIONS OF LAW
- The Texas Department of Insurance, Division of Workers’ Compensation has jurisdiction to hear this case.
- Venue was proper in the (City) Field Office.
- The preponderance of the evidence is not contrary to the decision of IR0 that a left shoulder arthroscopy and rotator cuff repair are not reasonable and necessary health care services for the compensable injury of ___
The preponderance of the evidence is not contrary to the decision of IR0 that a left shoulder arthroscopy and rotator cuff repair are not reasonable and necessary health care services for the compensable injury of ___.
The carrier is not liable for the benefits at issue in this hearing. The 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 the INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is:
CORPORATION SERVICE COMPANY
701 BRAZOS STREET, SUITE 1050
AUSTIN, TX 78701
Signed this 25th day of June, 2008.
Carol A. Fougerat