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At a Glance:
Title:
10046
Date:
October 16, 2009
Status:
Concurrent Medical Necessity

10046

October 16, 2009

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.

ISSUES

A contested case hearing was held on October 15, 2009, 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 a previously denied request for right shoulder rotator cuff repair with acromioplasty for the compensable injury of ________________?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by JS, ombudsman.

Respondent/Carrier appeared and was represented by CF, attorney.

BACKGROUND INFORMATION

Claimant sustained a compensable injury to both his shoulders on ________________. He did not seek medical care until January 2009. On March 05, 2009, he had surgery to his left shoulder to repair a rotator cuff tear. His surgeon now wishes to perform a rotator cuff tear repair on his right shoulder. Both URA doctors denied the treatment. The IRO doctor is clearly mistaken when he makes his recommendation as he thinks he is reviewing a shoulder that already had surgery. The left shoulder had surgery. This request is for the right shoulder.

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.

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 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."

Under the Official Disability Guidelines in reference to a right shoulder rotator cuff repair with acromioplasty, the following recommendation is made:

ODG Indications for Surgery -- Rotatorcuff repair:

Criteria for rotator cuff repair with diagnosis of full thickness rotator cuff tear AND Cervical pathology and frozen shoulder syndrome have been ruled out:

  1. Subjective Clinical Findings: Shoulder pain and inability to elevate the arm; tenderness over the greater tuberosity is common in acute cases. PLUS
  2. Objective Clinical Findings: Patient may have weakness with abduction testing. May also demonstrate atrophy of shoulder musculature. Usually has full passive range of motion. PLUS
  3. Imaging Clinical Findings: Conventional x-rays, AP, and true lateral or axillary views. AND Gadolinium MRI, ultrasound, or arthrogram shows positive evidence of deficit in rotator cuff.

Criteria for rotator cuff repair OR anterior acromioplasty with diagnosis of partial thickness rotator cuff repair OR acromial impingement syndrome (80% of these patients will get better without surgery.)

  1. Conservative Care: Recommend 3 to 6 months: Three months is adequate if treatment has been continuous, six months if treatment has been intermittent. Treatment must be directed toward gaining full ROM, which requires both stretching and strengthening to balance the musculature. PLUS
  2. Subjective Clinical Findings: Pain with active arc motion 90 to 130 degrees. AND Pain at night (Tenderness over the greater tuberosity is common in acute cases.) PLUS
  3. Objective Clinical Findings: Weak or absent abduction; may also demonstrate atrophy. AND Tenderness over rotator cuff or anterior acromial area. AND Positive impingement sign and temporary relief of pain with anesthetic injection (diagnostic injection test). PLUS
  4. Imaging Clinical Findings: Conventional x-rays, AP, and true lateral or axillary view. AND Gadolinium MRI, ultrasound, or arthrogram shows positive evidence of deficit in rotator cuff.

(Washington, 2002)

Under the Official Disability Guidelines in reference specifically to an acromioplasty, the following recommendation is made:

ODG Indications for Surgery -- Acromioplasty:

Criteria for anterior acromioplasty with diagnosis of acromial impingement syndrome (80% of these patients will get better without surgery.)

  1. Conservative Care: Recommend 3 to 6 months: Three months is adequate if treatment has been continuous, six months if treatment has been intermittent. Treatment must be directed toward gaining full ROM, which requires both stretching and strengthening to balance the musculature. PLUS
  2. Subjective Clinical Findings: Pain with active arc motion 90 to 130 degrees. AND Pain at night. PLUS
  3. Objective Clinical Findings: Weak or absent abduction; may also demonstrate atrophy. AND Tenderness over rotator cuff or anterior acromial area. AND Positive impingement sign and temporary relief of pain with anesthetic injection (diagnostic injection test). PLUS
  4. Imaging Clinical Findings: Conventional x-rays, AP, and true lateral or axillary view. AND Gadolinium MRI, ultrasound, or arthrogram shows positive evidence of impingement.

(Washington, 2002)

Claimant has not had a Gadolinium MRI, ultrasound, or arthrogram and has failed to show compliance with the requisites for a rotator cuff repair or acromioplasty set forth in the ODG. Claimant failed to offer other evidence based medicine thatnegates the necessity of one or more of those imaging studies in this case. Claimant did not meet his burden of proof to overturn 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:

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).

C.On ________________, Claimant sustained a compensable injury.

D.The Independent Review Organization determined Claimant should not have a previously denied request for right shoulder rotator cuff repair with acromioplasty.

  • 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.
  • A previously denied request for right shoulder rotator cuff repair with acromioplasty is not health care reasonably required for the compensable injury of ________________.
  • 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 a previously denied request for right shoulder rotator cuff repair with acromioplasty is not health care reasonably required for the compensable injury of ________________.

    DECISION

    Claimant is not entitled to a previously denied request for right shoulder rotator cuff repair with acromioplasty for the compensable injury of ________________.

    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 §408.021.

    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, TX 78701-3232.

    Signed this 16th day of October, 2009.

    KEN WROBEL
    Hearing Officer

    End of Document
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