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 October 15, 2009, to decide the following disputed issue:
- Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that the claimant is not entitled to left shoulder rotator cuff repair for the compensable injury of ______________?
Claimant appeared and was represented by JG, an attorney. Respondent/Self-insured appeared and was represented by BP, an attorney.
Claimant sustained a compensable injury on ______________ suffering injuries to her left upper extremity.
Pre-authorization for the proposed procedure was denied and a request for review by an IRO was made. The IRO reviewer, a physician board certified in orthopedic surgery upheld the denial of the left shoulder rotator cuff repair. In his explanation for his denial he opined that “In light of the fact that this patient has changing physical findings and an MRI without evidence of high grade rotator cuff abnormality and the fact that she has not had a complete conservative care program to include an injection, the reviewer finds that the requested rotator cuff repair is not medically necessary. The request does not meet the guidelines.”
Claimant's treating doctor, Dr. K, D.C. testified that based on his review of the claimant’s medical records and his examinations and treatment, the claimant met the criteria outlined in the ODG regarding rotator cuff repair. Carrier objected to Dr. K’s qualifications as an expert. The evidence did not establish Dr. K as an expert regarding the appropriateness of rotator cuff surgery.
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."
With regard to rotator cuff repair, the ODG provides,
ODG Indications for Surgery -- Rotator cuff repair:
Criteria for rotator cuff repair with diagnosis of full thickness rotator cuff tear ANDCervical pathology and frozen shoulder syndrome have been ruled out:
- Subjective Clinical Findings: Shoulder pain and inability to elevate the arm; tenderness over the greater tuberosity is common in acute cases. PLUS
- 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
- 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.)
- 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
- 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
- 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
- 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)
The claimant failed to present an evidence-based medical opinion from a competent source to overcome the IRO’s decision. Therefore, claimant has not met the requisite evidentiary standard required to overcome the IRO decision and the preponderance of the evidence is not contrary to the IRO decision that the claimant is not entitled to left shoulder rotator cuff repair.
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 (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
- On ______________, claimant was the employee of (Self-Insured).
- C.On ______________, claimant sustained a compensable injury.
2.Self-insured delivered to claimant a single document stating the true corporate name of Self-insured, and the name and street address of Self-insured’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
- The IRO determined that the requested procedure was not medically necessary and the claimant failed to present evidence based medical evidence sufficient to overcome such opinion.
4.The requested left shoulder rotator cuff repair is not health care reasonably required for the compensable injury of ______________.
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 not contrary to the decision of the IRO that left shoulder rotator cuff repair is not health care reasonably required for the compensable injury of ______________.
Claimant is not entitled to left shoulder rotator cuff repair.
Self-insured 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 self-insured is (SELF-INSURED) and the name and address of its registered agent for service of process is
(CITY), TEXAS (ZIP CODE)
Signed this 3rd day of November, 2009.