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At a Glance:
November 3, 2009


November 3, 2009


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 contested case hearing was held on November 2, 2009 to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that Claimant is not entitled to a total right knee replacement with an inpatient stay of 4 days for the compensable injury of ________________?


Petitioner/Claimant appeared and was assisted by JT, ombudsman. Respondent/Carrier was represented by BJ, attorney.


Claimant testified that he injured his back and right knee during the course and scope of employment on ________________. He said that he had surgery on the knee in 2007 but that Carrier has denied Dr. S' current request to perform a total knee replacement.

Documentary evidence shows that an IRO upheld the adverse determination for the total knee replacement, relying on the Official Disability Guidelines (ODG).

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 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."

The ODG provides the following for joint knee replacement:

ODG Indications for Surgery -- Knee arthroplasty:

Criteria for knee joint replacement (If only 1compartment is affected, a unicompartmental or partial replacement is indicated. If 2of the 3 compartments are affected, a total joint replacement is indicated.):

  1. Conservative Care: Medications. AND (Visco supplementation injections OR Steroid injection). PLUS
  2. Subjective Clinical Findings: Limited range of motion. AND Nighttime joint pain. AND No pain relief with conservative care. PLUS
  3. Objective Clinical Findings: Over 50 years of age AND Body Mass Index of less than 35. PLUS
  4. Imaging Clinical Findings: Osteoarthritis on: Standing x-ray. OR Arthroscopy. (Washington, 2003) (Sheng, 2004) (Saleh, 2002) (Callahan, 1995)

BS testified for Carrier. He is a medical doctor and is a board certified orthopedic surgeon. He said that he performs total knee replacements, more accurately described as total knee resurfacing, weekly.

Dr. S has not examined Claimant but has reviewed Claimant's medical records, including a magnetic resonance imaging of the knee and an x-ray of the knee. He said that the medical records do not show that Claimant meets any of the indications for surgery that are listed in the ODG. He said that only the patella and not the medial or lateral compartment of the knee are affected. He said that the records are not clear in indicating what if any, anti-inflammatory medications, have been given to Claimant as conservative care. He said that Claimant's records show that he had full extension and almost full flexion and do not record nighttime joint pain. He noted that Claimant's body mass index is 37. He also said that osteoarthritis is not shown on an x-ray and that the previous arthroscopy showed chrondomalacia only in the patella.

Claimant did not present evidence to show that he met the ODG criteria for a total knee replacement. Claimant failed to present evidence based medicine to overcome 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.


  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, who was the employee of (Employer), sustained a compensable injury.

  • 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 total right knee replacement with an inpatient stay of 4 days is not health care reasonably required for the compensable injury of ________________.

    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 Claimant is not entitled to a total right knee replacement with an inpatient stay of 4 days for the compensable injury of ________________.


    Claimant is not entitled to a total right knee replacement with an inpatient stay of 4 days for the compensable injury of ________________.


    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 TEXAS MUTUAL INSURANCECOMPANY and the name and address of its registered agent for service of process is



    6210 EAST HIGHWAY 290

    AUSTIN, TEXAS 78723

    Signed this 3rd day of November, 2009.

    Hearing Officer

    End of Document