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.

ISSUE

A contested case hearing was held on December 10, 2012, to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO board certified orthopedic surgeon that the claimant is not entitled to a right shoulder arthroscopy with M-O rotator cuff repair and bicep tenodesis and SAD and DCE for the compensable injury of (Date of Injury)?

PARTIES PRESENT

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

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

BACKGROUND INFORMATION

On (Date of Injury), Claimant was working on the order line when she simply reached out and felt/heard a sharp pop in her right shoulder. Since then she has not had full range of motion or full strength in her right shoulder. Her doctor has tried physical therapy, medications and injections. Claimant still has significant pain with an inability for total use of her right arm. Claimant’s surgeon, D N, D.O., is proposing a right shoulder arthroscopy with M-O rotator cuff repair and bicep tenodesis and SAD and DCE. Carrier denied this procedure and the IRO agreed.

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. 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. (Division Rule 133.308 (t).)

Under the Official Disability Guidelines in reference to a right shoulder arthroscopy with M-O rotator cuff repair and bicep tenodesis and SAD and DCE, the following recommendation is made:

ODG Indications for Surgery — Rotator cuff 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.
4. 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.)
5. 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
6. 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
7. 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
8. 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)

   For average hospital LOS if criteria are met, see Hospital length of stay (LOS).

   ODG Indications for Surgery — Ruptured biceps tendon surgery:

9. Criteria for tenodesis of long head of biceps (Consideration of tenodesis should include the following: Patient should be a young adult; not recommended as an independent stand alone procedure. There must be evidence of an incomplete tear.) with diagnosis of incomplete tear or fraying of the proximal biceps tendon (The diagnosis of fraying is usually identified at the time of acromioplasty or rotator cuff repair so may require retrospective review.):
10. Subjective Clinical Findings: Complaint of more than “normal” amount of pain that does not resolve with attempt to use arm. Pain and function fails to follow normal course of recovery. PLUS
11. Objective Clinical Findings: Partial thickness tears do not have classical appearance of ruptured muscle. PLUS
12. Imaging Clinical Findings: Same as that required to rule out full thickness rotator cuff tear: Conventional x-rays, AP and true lateral or axillary view. AND Gadolinium MRI, ultrasound, or arthrogram shows positive evidence of deficit in rotator cuff.
13. Criteria for tenodesis of long head of biceps with diagnosis of complete tear of the proximal biceps tendon: Surgery almost never considered in full thickness ruptures. Also required:
14. Subjective Clinical Findings: Pain, weakness, and deformity. PLUS
15. Objective Clinical Findings: Classical appearance of ruptured muscle.
16. Criteria for reinsertion of ruptured biceps tendon with diagnosis of distal rupture of the biceps tendon: All should be repaired within 2 to 3 weeks of injury or diagnosis. A diagnosis is made when the physician cannot palpate the insertion of the tendon at the patient’s antecubital fossa. Surgery is not indicated if 3 or more months have elapsed.

Claimant is credible she is having the significant problems she testified she is having with the use of her right arm. Claimant has had conservative treatment and it would seem what would be left was some sort of surgical intervention. Dr. N, in an undated letter to Claimant’s ombudsman, states he does not intend on doing a rotator cuff surgery or distal clavicle excision. He notes the Official Disability Guidelines recommends tenodesis when performing a rotator cuff surgery because it only takes an additional 10 minutes. He then relates his personal experience with his shoulder surgery and why he should have had the tenodesis. He then states there can be no better expert witness testimony than that.

Claimant’s problem is a legal technicality. Claimant’s surgeon never addresses the Official Disability Guidelines and why, based upon the Official Disability Guidelines, Claimant should have the surgery he is proposing. He describes procedures and what should be done as opposed to how Claimant meets the Official Disability Guidelines for those procedures. It is unclear if the exact procedure being proposed is even found in the Official Disability Guidelines since Dr. N said he is not planning on a rotator cuff repair. The IRO doctor’s comments do not appear to be consistent with the medical records, but that does not mean Claimant’s surgeon does not have to substantiate the necessity for the proposed procedure based upon the Official Disability Guidelines. Unfortunately for Claimant, this substantiation is not found in the medical records.

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:
   1. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
   2. On (Date of Injury), Claimant was the employee of (Employer), Employer.
   3. On (Date of Injury), Claimant sustained a compensable injury.
   4. On (Date of Injury), Employer provided workers’ compensation insurance with New Hampshire Insurance Company.
   5. The Independent Review Organization board certified orthopedic surgeon determined Claimant should not have right shoulder arthroscopy with MO rotator cuff repair & bicep tenodesis and SAD & DCE.
2. 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.
3. A right shoulder arthroscopy with M-O rotator cuff repair and bicep tenodesis and SAD and DCE is not health care reasonably required for the compensable injury of (Date of Injury).

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 orthopedic surgeon that a right shoulder arthroscopy with M-O rotator cuff repair and bicep tenodesis and SAD and DCE is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to a right shoulder arthroscopy with M-O rotator cuff repair and bicep tenodesis and SAD and DCE for the compensable injury of (Date of Injury).

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 NEW HAMPSHIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7th STREET, SUITE 620

AUSTIN, TX 78701-3232.

Signed this 14th day of December, 2012.

KEN WROBEL
Hearing Officer