Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Title:
16014-nnr
Date:
December 18, 2015

16014-nnr

December 18, 2015

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. For the reasons discussed herein, the Hearing Officer determines that the preponderance of the evidence is not contrary to the decision of the Independent Review Organization that Claimant is not entitled to the following durable medical equipment (DME): partial foot, molded socket, tibial tubercle height with toe filler; addition endoskeletal system below knee, ultralight material (titanium, carbon, fiber or equal); addition to lower extremity, below knee acrylic socket; addition to lower extremity, socket insert, below knee (kemblo, pelite, aliplast, plastazote or equal); gradient compression stockings, below knee 18-30 mmhg each; and 6 prosthetic socks, multiple ply, below knee each, for the compensable injury of (date of injury).

STATEMENT OF THE CASE

A contested case hearing was held on December 17, 2015 to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the Independent Review Organization that Claimant is not entitled to the following durable medical equipment (DME): partial foot, molded socket, tibial tubercle height with toe filler; addition endoskeletal system below knee, ultralight material (titanium, carbon, fiber or equal); addition to lower extremity, below knee acrylic socket; addition to lower extremity, socket insert, below knee (kemblo, pelite, aliplast, plastazote or equal); gradient compression stockings, below knee 18-30 mmhg each; and 6 prosthetic socks, multiple ply, below knee each, for the compensable injury of (date of injury)?

PARTIES PRESENT

Claimant/Petitioner appeared and was assisted by M H, ombudsman.

Carrier/Respondent appeared and was represented by J F, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant/Petitioner: Claimant.

For Carrier/Respondent: None.

The following exhibits were admitted into evidence:

Hearing Officer’s Exhibits HO-1 and HO-2.

Claimant/Petitioner’s Exhibits C-1 through C-4.

Carrier/Respondent’s Exhibits CR-A through CR-D.

DISCUSSION

Claimant sustained a compensable partial foot loss on (date of injury) due to a forklift accident. On June 9, 2015, Claimant was seen in the Holmes Prosthetic Center, LLC, requesting a new prosthesis/artificial limb orthotic stating the current one was 15-18 months old. Claimant stated that the PHAT brace did not work for him as he had a heavy duty job and was wearing the prosthesis for high activity, over 8 hours, and he was not using another assistive device. A carbon fiber foot plate with a custom toe filler, bilateral custom insert and compression hose for his foot was recommended. On July 6, 2015 Jon Holmes, with the approval of Dr. M requested the equipment.

On July 9, 2015, the request for the equipment was not certified as medically necessary by a utilization reviewer due to an absence of documentation that Claimant could not use the current artificial limb or that the PHAT brace could not be repaired or modified to decrease the skin breakdown. As to the compression stockings, the reviewer opined that there was an absence of documentation that Claimant has edema or requires compression stockings. On July 22, 2015, a second utilization reviewer also opined that the requested equipment was not medically necessary. The second reviewer agreed with the initial review and restated there was no evidence that the current prosthesis could not be modified to decrease any associated skin breakdown, noting that Claimant had full function with the current prosthesis. On July 31, 2015, Dr. M submitted a response to the denial stating that Claimant had a partial foot prosthesis with a couple of parts to it and his shoe insert had worn out as Claimant had used it since October, 2014, it was not reparable and had an odor. Dr. M requested review by an independent review organization (IRO). The IRO issued a decision on August 13, 2015 upholding the denial. The IRO reviewer determined that the medical necessity of the requested equipment had not been proved. Claimant appealed that decision to this medical contested case hearing.

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 (22-a) 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 (18-a) 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 and 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. 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 is 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 orthotics the ODG states as follows:

Orthotic devices:

“Recommended for plantar fasciitis and for foot pain in rheumatoid arthritis. See also Ankle foot orthosis (AFO).”

With regard to prosthesis (artificial limb) the ODG states as follows:

“Recommended as indicated below. See the IDEO™ (intrepid dynamic exoskeletal orthosis).

Criteria for the use of prostheses:

A lower limb prosthesis may be considered medically necessary when:

  1. The patient will reach or maintain a defined functional state within a reasonable period of time;
  2. The patient is motivated to ambulate; and
  3. The prosthesis is furnished incident to a physician's services or on a physician's order.”

With regard to compression garments the ODG states as follows:

“Recommended. Good evidence for the use of compression is available, but little is known about dosimetry in compression, for how long and at what level compression should be applied. Low levels of compression 10-30 mmHg applied by stockings are effective in the management of telangiectases after sclerotherapy, varicose veins in pregnancy, the prevention of edema and deep vein thrombosis (DVT). High levels of compression produced by bandaging and strong compression stockings (30-40 mmHg) are effective at healing leg ulcers and preventing progression of post-thrombotic syndrome as well as in the management of lymphedema. (Nelson-CochraneVenous thrombosis.

Recent research: There is inconsistent evidence for compression stockings to prevent post-thrombotic syndrome (PTS) after first-time proximal deep venous thrombosis (DVT). The findings of this study do not support routine wearing of elastic compression stockings (ECS) after DVT. PTS is a chronic disorder affecting 40%-48% of patients during the first 2 years after acute symptomatic DVT. The American College of Chest Physicians currently recommends wearing compression stockings with 30-40 mm Hg pressure at the ankle for 2 years to reduce the risk of developing PTS, but the data supporting this recommendation are inconsistent, and come from small randomized trials without blinding. This high quality double-blind randomized trial compared compression stockings to sham stockings (without therapeutic compression) in 806 patients with proximal DVT and concluded otherwise. (Kahn, 2014)”

Claimant testified as to the reasons that he needed the equipment. Claimant stated that he is active at work and sports and the brace has a stress crack that could cause him injury. Claimant also stated that his orthotic insert is so worn that it has caused the site of his amputation to become very sensitive and sore, and he developed a fungal infection. No doctor testified on behalf of Claimant. But, Dr. M did provide a short note, dated July 13, 2015, stating that it is medically necessary for the insert to be replaced every six months due to normal wear and tear. Dr. M also reported that Claimant is a high activity user and utilizes different devices, including a tibial tubercle height prosthesis or his custom inserts, depending on his activity, and Claimant also uses compression socks to control edema. Dr. M failed to offer evidence of credible scientific studies or medical literature establishing the need for the DME or whether the existing equipment could be repaired. Nor did Dr. M establish that there is no evidence based medical studies regarding the need, or lack thereof, for the proposed equipment.

The Claimant has the burden of proof to overcome the IRO determination and the Claimant failed to present any evidence based medical opinion contrary to the determination of the IRO that the Claimant is not entitled to the requested DME for the compensable injury of (date of injury).

The preponderance of the evidence is not contrary to the decision of the IRO that the Claimant is not entitled to the following DME: partial foot, molded socket, tibial tubercle height with toe filler; addition endoskeletal system below knee, ultralight material (titanium, carbon, fiber or equal); addition to lower extremity, below knee acrylic socket; addition to lower extremity, socket insert, below knee (kemblo, pelite, aliplast, plastazote or equal); gradient compression stockings, below knee 18-30 mmhg each; and 6 prosthetic socks, multiple ply, below knee each, for the compensable injury of (date of injury).

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 (date of injury) Claimant was the employee of (Employer), Employer.

C.On (date of injury), Employer provided workers’ compensation insurance with Carrier.

D.On (date of injury) Claimant sustained a compensable injury.

E. The IRO decision found that Claimant was not entitled to the following DME: partial foot, molded socket, tibial tubercle height with toe filler; addition endoskeletal system below knee, ultralight material (titanium, carbon, fiber or equal); addition to lower extremity, below knee acrylic socket; addition to lower extremity, socket insert, below knee (kemblo, pelite, aliplast, plastazote or equal); gradient compression stockings, below knee 18-30 mmhg each; and 6 prosthetic socks, multiple ply, below knee each, for the compensable injury of (date of 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.
  • Claimant failed to provide evidence based medicine contrary to the IRO decision.
  • The following DME: partial foot, molded socket, tibial tubercle height with toe filler; addition endoskeletal system below knee, ultralight material (titanium, carbon, fiber or equal); addition to lower extremity, below knee acrylic socket; addition to lower extremity, socket insert, below knee (kemblo, pelite, aliplast, plastazote or equal); gradient compression stockings, below knee 18-30 mmhg each; and 6 prosthetic socks, multiple ply, below knee each, 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 that the Claimant is not entitled to the following DME: partial foot, molded socket, tibial tubercle height with toe filler; addition endoskeletal system below knee, ultralight material (titanium, carbon, fiber or equal); addition to lower extremity, below knee acrylic socket; addition to lower extremity, socket insert, below knee (kemblo, pelite, aliplast, plastazote or equal); gradient compression stockings, below knee 18-30 mmhg each; and 6 prosthetic socks, multiple ply, below knee each, for the compensable injury of (date of injury).

    DECISION

    Claimant is not entitled to the following DME: partial foot, molded socket, tibial tubercle height with toe filler; addition endoskeletal system below knee, ultralight material (titanium, carbon, fiber or equal); addition to lower extremity, below knee acrylic socket; addition to lower extremity, socket insert, below knee (kemblo, pelite, aliplast, plastazote or equal); gradient compression stockings, below knee 18-30 mmhg each; and 6 prosthetic socks, multiple ply, below knee each, for the compensable injury of (date of injury).

    ORDER

    Carrier is not liable for the benefits at issue in this hearing, and it is so ordered. Claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.

    The true corporate name of the insurance carrier is RESPONDENT, and the name and address of its registered agent for service of process is

    CT CORPORATION SYSTEM

    1999 BRYAN STREET, SUITE 900

    DALLAS, TX 75201-3136

    Signed this 18th day of December, 2015.

    Judy L. Ney
    Hearing Officer

    End of Document
    Top