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At a Glance:
Title:
16038-nnr
Date:
August 23, 2016

16038-nnr

August 23, 2016

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 not entitled to right shoulder arthroscopic exploration and debridement of bicipital groove, open subpectoral biceps tenodesis for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On August 22, 2016, Carol A. Fougerat, a Division Hearing Officer, held a contested case hearing 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 right shoulder arthroscopic exploration and debridement of bicipital groove, open subpectoral biceps tenodesis for the compensable injury of (Date of Injury)?

PARTIES PRESENT

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

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

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant

For Carrier: None

The following exhibits were admitted into evidence:

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

Claimant’s Exhibits: C-1 through C-5

Carrier’s Exhibits: CR-1 through CR-L

DISCUSSION

Claimant sustained a compensable injury on (Date of Injury), when he was pulling a heavy metal bar and he fell backwards onto his outstretched right upper extremity, causing an injury to his right shoulder. On February 10, 2015, Claimant underwent an arthroscopic rotator cuff repair, biceps tenodesis, excision of the distal clavicle, and subacromial decompression. Claimant continued to experience right shoulder symptoms, and on October 8, 2015, Claimant underwent a right shoulder MRI, which revealed findings of surgical intervention without acute abnormality. Claimant testified that he has continued to experience right shoulder pain, and that his treating doctor, R D, M.D., has recommended right shoulder arthroscopic exploration and debridement of bicipital groove, open subpectoral biceps tenodesis, which he anticipates may relieve his symptoms. The requested procedure was denied by Carrier and appealed to an IRO.

The IRO reviewer, identified as an orthopedic surgeon, upheld Carrier’s denial and determined that the requested surgery was not medically necessary. The IRO reviewer stated that the Official Disability Guidelines (ODG) note that biceps tenodesis is recommended as an option for type II or type IV SLAP lesions for patients over the age of 40. The IRO reviewer refers to a progress note dated February 10, 2016, which documents that Claimant has continued right shoulder pain and mild motion deficits, as well as a positive impingement sign and Speed’s test, along with continued tenderness over the tenodesis site and bicipital groove. However, the MRI demonstrated no acute abnormality and there is no evidence of recurrent full-thickness tear. The long head biceps tendon was normally positioned within its groove and there was no indication that Claimant had a type II or type IV SLAP lesion to warrant a biceps tenodesis. The IRO reviewer concluded that the requested right shoulder procedure was not medically necessary at this time.

Texas Labor Code §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 §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 §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, outcome-focused, and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. Texas Labor Code §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 §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."

ODG Criteria for Surgery for Biceps tenodesis:

- History and physical examinations and imaging indicate significant biceps tendon pathology

- After 3 months of failed conservative treatment (NSAIDs, injection and PT)

- Advanced biceps tendinopathy

- Type II SLAP lesions (fraying and some detachment)

- Type IV SLAP lesions (more than 50% of the tendon is involved, vertical tear, bucket-handle tear of the superior labrum, which extends into biceps, intrasubstance tear)

- Generally, type I and type III SLAP lesions do not need any treatment

- Also patients undergoing concomitant rotator cuff repair

- Age 40 and older

-Below age 40 if undergoing concomitant rotator cuff repair

In response to the IRO’s determination, Dr. D provided a letter dated August 12, 2016, indicating that he believed that the IRO reviewer “misread my clinic note.” Dr. D points out that the IRO review stated that there was no Popeye deformity of the right biceps muscle which is indicative of failure of the biceps tendon tenodesis performed in the right shoulder. Although the Popeye deformity was noted in Dr. D’s clinical notes that were provided to the IRO reviewer, Dr. D failed to address the other concerns that the IRO reviewer upon which the reviewer based the determination, such as the ODG recommendations for the proposed surgery. Dr. D also noted that, “The orthopedic literature supports this recommendation;” however, he does not cite any actual literature to support his proposition.

Based on the evidence presented, Claimant does not meet the requirements in the ODG for the requested right shoulder procedure, and Claimant failed to present evidence sufficient to contradict the determination of the IRO. The preponderance of the evidence is not contrary to the IRO decision that Claimant is not entitled to right shoulder arthroscopic exploration and debridement of bicipital groove, open subpectoral biceps tenodesis 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

  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 coverage with (Carrier), Carrier.

    D. Claimant sustained a compensable injury on (Date of Injury).

  2. E.The IRO determined that the proposed right shoulder arthroscopic exploration and debridement of bicipital groove, open subpectoral biceps tenodesis is not medically necessary for the compensable injury of (Date of Injury).

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.

  • Claimant does not meet the recommendations of the ODG for a right shoulder arthroscopic exploration and debridement of bicipital groove, open subpectoral biceps tenodesis, and Claimant failed to present evidence-based medical evidence sufficient to overcome the determination of the IRO.
  • Right shoulder arthroscopic exploration and debridement of bicipital groove, open subpectoral biceps tenodesis 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 right shoulder arthroscopic exploration and debridement of bicipital groove, open subpectoral biceps tenodesis is not health care reasonably required for the compensable injury of (Date of Injury).

    DECISION

    Claimant is not entitled to right shoulder arthroscopic exploration and debridement of bicipital groove, open subpectoral biceps tenodesis for the compensable injury of (Date of Injury).

    ORDER

    Carrier is not liable for the medical benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code §408.021.

    The true corporate name of the insurance carrier is (Carrier), and the name and address of its registered agent for service of process is:

    CORPORATION SERVICES COMPANY

    211 EAST 7TH STREET, SUITE 620

    AUSTIN, TX 78701

    Signed this 23rd day of August, 2016.

    Carol A. Fougerat
    Hearing Officer

    End of Document
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