DECISION AND ORDER
This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Hearing Officer determines that Claimant is entitled to an ExoSym IDEO brace purchase for the left ankle for the compensable injury of (Date of Injury).
STATEMENT OF THE CASE
A contested case hearing was held on August 3, 2016, 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 an ExoSym IDEO brace purchase for the left ankle for the compensable injury of (Date of Injury)?
Petitioner/Claimant appeared and was assisted by H S, ombudsman. Respondent/Carrier appeared and was represented by R R, attorney. S E appeared as the Employer Representative.
The following witnesses testified:
For Petitioner/Claimant: Claimant and R B.
For Respondent/Carrier: None.
The following exhibits were admitted into evidence:
Hearing Officer’s Exhibits: HO-1 and HO-2.
Petitioner/Claimant’s Exhibits: C-1 through C-13.
Respondent/Carrier’s Exhibits CR-A through CR-D.
It is undisputed that Claimant sustained a compensable injury on (Date of Injury). Claimant testified that he worked for his employer as a police officer, and he was hit by a sport utility vehicle while he was on his motorcycle. There was no dispute regarding the extent of the compensable injury. Petitioner/Claimant (Claimant) requested the medical contested case hearing because he contends the preponderance of the evidence is contrary to the decision of the Independent Review Organization (IRO) that he is not entitled to ExoSym intrepid dynamic exoskeletal orthosis (IDEO) brace purchase for the left ankle. Respondent/Carrier (Carrier) argued the decision of the IRO should be upheld.
On April 5, 2016, Claimant’s podiatrist, CB, DPM, indicated that he prescribed an ExoSym/IDEO brace for Claimant’s left ankle. He noted that Claimant has had two surgeries and an ankle fusion and continues to have persistent pain. He indicated that the brace was medically necessary, because Claimant has tried medication, rocker shoes, and a traditional lace-up ankle brace without success. Dr. CB specified that the IDEO brace has successfully rehabilitated patients with activities that would help Claimant return to normal activities.
The preauthorization request for ExoSym IDEO brace went to a Utilization Review Agent (URA) doctor, K F, M.D., who initially denied the request. According to the adverse determination dated (Date of Injury), Dr. KF noted that orthoses are recommended as an option for foot drop, during surgical recovery, or during neurological recovery. He specified that the records do not reflect that Claimant meets this criteria because there was no foot drop noted on physical examination. He also stated that there was no recent clinical note that clearly describes why Claimant continues to have significant pain following the ankle fusion, and the records did not reflect how Claimant’s pain is going to be alleviated with the brace.
A second request was submitted for reconsideration by another URA doctor, CR, M.D., who also denied the request. Dr. CR stated in his April 27, 2016, adverse determination report that he reviewed an additional evaluation dated April 20, 2016, and Dr. KF’s previous determination is supported. He specified the Official Disability Guidelines (ODG) state the ankle-foot orthosis brace is recommended as an option for foot drop, and there are no physical findings of foot drop.
The Claimant appealed the denials through an Independent Review Organization (IRO). The IRO doctor upheld the previous denials. The IRO reviewer indicated that according to the ODG, an IDEO may be recommended after lower extremity trauma if it is accompanied by the specialized IDEO rehabilitation training program. The reviewer stated that the IDEO returns considerable functionality to patients that have undergone ankle fusion procedures and enables many patients with nerve and muscle loss to forgo ankle fusion or tendon transfers. The reviewer indicated that the previous denials were upheld because there was lack of clinical documentation indicating Claimant would be participating in an IDEO approved rehabilitation training program. As previously mentioned, Claimant appealed the IRO determination by requesting a 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 (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(s), "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 guidelines concerning the IDEO brace:
Recommended after lower extremity trauma if accompanied by a specialized IDEO rehab training program, which may only be available through the U.S. military. The IDEO™ (Intrepid Dynamic Exoskeletal Orthosis) is a customizable energy-storing device that is designed to support and protect an extensive array of lower extremity limb injuries. The US Army has developed a high intensity, progression-oriented rehabilitation program proven to return severely injured patients back to a high level of activity using this device. IDEO has advantages over existing braces and orthoses in terms of patient comfort and performance. The device supplies energy storage and return capabilities that an injured ankle is no longer able to provide. In particular, the IDEO returns considerable functionality to patients that have undergone ankle fusion procedures and even enables many patients with nerve and muscle loss to forgo ankle fusion or tendon transfer. The IDEO device is modular throughout the rehabilitation period to adapt to a patient’s changes in strength and motion. Once the patient has progressed to an adequate level of recovery, the initial modular IDEO is replaced with a lighter, more dynamic system that has enabled dozens of wounded soldiers to return to duty. Results include a 29% reduction in forty-yard dash time compared to the next best available technology. Users find the device easy to use and wear it a median of 10 hours before experiencing discomfort, nearly 10 times longer than competing technologies. The IDEO has enabled many wounded soldiers to run again. (Russell-Esposito, 2015)
Patients with severe lower extremity trauma have significant disability 2 years after injury that worsens by 7 years. Up to 15% seek late amputation. In this prospective study, using an integrated IDEO orthotic and rehabilitation program, by 8 weeks, patients improved in all physical performance measures and all relevant patient-reported outcomes. Patients less than and greater than 2 years after injury improved similarly. Forty-one of 50 patients initially considering amputation favored limb salvage at the end of 8 weeks. (Bedigrew, 2014) Patients participating in the Return to Run Clinical Pathway rehab program with an IDEO had a 51.3% return to active duty rate compared to 12.9% with an IDEO and no specialized rehab program. (Blair, 2014) Use of the IDEO significantly improves performance on validated tests of agility, power, and speed. The majority of subjects initially considering amputation favored limb salvage after this noninvasive intervention. (Patzkowski, 2012)
In evidence is a treatment record dated March 30, 2016, from Dr. CB. Dr. CB indicated that Claimant was recommended an IDEO brace because he has a very demanding job and is extremely active. He noted that the brace has been shown to improve function in active athletes/soldiers, and Claimant has tried ankle bracing, taping, and insoles without success. Also in evidence was a physical therapist record dated March 31, 2016. The therapist noted that Claimant had shown good improvements throughout his course of physical therapy, but has not been able to progress in advanced activities. The therapist also noted that Claimant had “excellent compliance with the outlined home program,” and he has reached the maximal medical benefit from skilled therapeutic interventions at that time. The therapist specified that Claimant has not been able to perform his required activities to return to work and would require further intervention in the form of an external assistance (brace) to assist him in returning to work. Rehabilitation was put on hold while waiting for a prescription for the left ankle brace. In a letter dated April 5, 2016, Dr. B specified the IDEO brace was medical necessary in order to aid in Claimant’s rehabilitation and return him to normal activities.
According to the ODG, the IDEO brace is recommended after lower extremity trauma, if accompanied by a specialized IDEO rehabilitation training program which may only be available through the U.S. military. Dr. B indicated that Claimant had two surgeries and ultimately underwent an ankle fusion. He further specified that Claimant has had persistent pain and has tried medication, rocker shoes, and a traditional lace-up ankle brace without success. There was no dispute concerning the extent of Claimant’s compensable left ankle injury.
The IRO doctor indicated that the previous URA denials were upheld because the clinical documentation did not show that Claimant would attend a rehabilitation program upon receiving the IDEO brace. However, the evidence presented established that Claimant would be fitted with the brace and then undergo functional training. The evidence showed that Claimant would undergo an initial evaluation over a two day period and he would have a finalized fitting. After the finalized fitting, Claimant would go through five days of device optimization and function training ranging from two to three hours in the morning, and Claimant would have a physical therapist and RB, the IDEO program director, work with him throughout the training.
As the ODG notes, the rehabilitation training is a specialized rehabilitation program, and may only be available through the U.S. Military. The evidence showed that Mr. B developed and invented the IDEO brace while working with the military. Mr. RB joined the Hanger Clinic as the National ExoSym IDEO Program Director in September of 2013 in order to make the IDEO brace available to civilians. The evidence supported that Claimant would undergo rehabilitation through Dr. RB’s program for the IDEO brace.
With respect to the utilization review determinations, the ODG recommendations do not specify that a physical finding of foot drop is necessary. The ODG just states that there must be lower extremity trauma.
Based on the evidence presented, the request for the IDEO brace comports with the ODG, and the preponderance of the evidence was contrary to the IRO decision. Consequently, the Claimant is entitled to an ExoSym IDEO brace purchase for the left ankle for the compensable injury of (Date of Injury).
The Hearing Officer considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.
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 (Date of Injury), Claimant was the employee of the (Employer), Employer.
C.On (Date of Injury), Employer provided workers’ compensation insurance as a self-insured.
D.On (Date of Injury), Claimant 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 the Claimant is not entitled to an ExoSym IDEO brace purchase for the left ankle for the compensable injury of (Date of Injury).
Claimant is entitled to an ExoSym IDEO brace purchase for the left ankle for the compensable injury of (Date of Injury).
Carrier is 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 (SELF-INSURED), and the name and address of its registered agent for service of process is:
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET SUITE 620
AUSTIN, TEXAS 78701-3218
Signed this 8th day of August, 2016.