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 April 4, 2011 to decide the following disputed issue:

1. Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant is not entitled to right shoulder arthroscopy and acromioplasty for the compensable injury of _______________?

PARTIES PRESENT

Petitioner/Claimant appeared and was represented by JC, attorney. Respondent/Carrier appeared and was represented by JF, attorney.

BACKGROUND INFORMATION

Claimant is a professional hockey player who sustained a compensable injury, including injury to the right shoulder, on _______________. Dr. G requested approval for right shoulder arthroscopy and acromioplasty. The IRO doctor upheld the previous denials of the request.

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 indications for acromioplasty:

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.

The IRO doctor thought the ODG criteria were not met. Specifically, required objective findings on clinical examination were not documented, and required imaging showing impingement was lacking. The review doctors, both orthopedic surgeons, also thought the ODG criteria were not met.

Dr. G testified for Claimant. He acknowledged that Claimant had full range of motion in the right shoulder, including in abduction, and no atrophy, and that Claimant had not had a right shoulder gadolinium MRI (a contrast MRI using dye), ultrasound testing, or an arthrogram. Dr. G further acknowledged that Claimant’s right shoulder MRI without contrast did not show impingement, but he opined that MRIs were not always accurate. Claimant offered some journal articles and argued through his attorney, as the Hearing Officer understood it, that the articles were evidence based medicine rebutting the ODG requirement for positive imaging evidence of impingement. If they were, there was no showing of evidence based medicine contrary to the ODG requirements for objective clinical findings, which clearly were not met.

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 the requested treatment.

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.

Right shoulder arthroscopy and 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 right shoulder arthroscopy and acromioplasty is not health care reasonably required for the compensable injury of _______________.

DECISION

Claimant is not entitled to right shoulder arthroscopy and 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 Section 408.021 of the Act.

The true corporate name of the insurance carrier is ACE AMERICAN INSURANCE COMPANY, and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201

Signed this 4th day of April, 2011.

Thomas Hight
Hearing Officer