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 contested case hearing was held on November 3, 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 repeat arthroscopy of the right knee and examination under anesthesia for the compensable injury of ______________?
Petitioner/Claimant appeared and was assisted by YG, ombudsman.
Respondent/Carrier was represented by RT, attorney.
Claimant testified that she was injured on ______________ when she rose from a squatting position, holding medical records, and felt a burning in her right knee. She sought medical treatment from Drs. C and S who prescribed anti-inflammatory medications, physical therapy and ordered a magnetic resonance imaging (MRI).
Dr. S performed an arthroscopy of Claimant's knee in February of 2009: he removed plica in the patella and debrided the fraying and tearing of the edge of the lateral meniscus. After the surgery, he ordered additional physical therapy. By April 1, 2009, he allowed Claimant to return to work without restrictions. On April 15, 2009, he noted effusion in Claimant's knee and requested another MRI. Dr. H wrote that the MRI, taken on June 9, 2009, showed a significant partial tear or sprain of the anterior cruciate ligament, minimal suprapatellar joint effusion, partial tear of the medial collateral ligament, and chondromalacia patella of the medial patellar facet.
On August 13, 2009, an IRO upheld the previous adverse determinations by the utilization reviewers and Carrier for a repeat arthroscopy of the knee and examination under anesthesia. The last sentence of the reviewer's analysis and explanation was as follows:
"In light of the fact that the patient has already had surgery and there are no reported new injuries, it is my opinion that further surgery would be of no benefit to this patient."
Even though the reviewer noted the use of the ODG, the reviewer did not write how Claimant failed to meet the requirements of the 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 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."
The ODG provides the following for arthroscopy:
ODG Indications for Surgery -- Diagnostic arthroscopy:
Criteria for diagnostic arthroscopy:
- Conservative Care: Medications. OR Physical therapy. PLUS
- Subjective Clinical Findings: Pain and functional limitations continue despite conservative care. PLUS
- Imaging Clinical Findings: Imaging is inconclusive.
(Washington, 2003) (Lee, 2004)
Claimant presented a medical narrative from Dr. S dated October 12, 2009 that shows Claimant meets the criteria for arthroscopy: he wrote that Claimant failed conservative care, including physical therapy and surgery; that Claimant had pain and functional limitations; and that imaging studies were inclusive, explaining that the studies also did not match findings on a computerized ligament test. He attached the report from the KT 1000 test. His narrative is also supported by earlier documentation he made after examining Claimant as early as December of 2008.
Dr. S's narrative was evidence based medicine that is contrary to the IRO's determination. He, unlike the IRO reviewer, showed how Claimant met the ODG criteria for a repeat arthroscopy. The IRO reviewer relied on the reviewer's opinion. Dr. S relied on the ODG. Dr. S was persuasive.
While both parties referenced the ODG regarding anterior cruciate liagment reconstruction, that procedure was not one that was reviewed by the IRO. That procedure is not one that is the subject of the instant case.
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, who was the employee of the (Self-Insured), sustained a compensable injury.
CONCLUSIONS OF LAW
- The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
- Venue is proper in the (City) Field Office.
- The preponderance of the evidence is contrary to the decision of the IRO that a repeat arthroscopy of the right knee and examination under anesthesia is not health care reasonably required for the compensable injury of ______________.
Claimant is entitled to a repeat arthroscopy of the right knee and examination under anesthesia for the compensable injury of ______________.
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 (a self-insured governmental entity) and the name and address of its registered agent for service of process is
For service in person, the address is:
(A SELF-INSURED GOVERNMENTAL ENTITY)
(BUILDING & FLOOR)
(CITY), TEXAS (ZIP CODE)
For service by mail, the address is:
(A SELF-INSURED GOVERNMENTAL ENTITY)
(CITY), TEXAS (ZIP CODE)
Signed this 4th day of November, 2009.
CAROLYN F. MOORE