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At a Glance:
Title:
16041-nnr
Date:
September 19, 2016

16041-nnr

September 19, 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 the ACDF C3-C5 fusion with a 23-hour observation for the compensable injury of (Date of Injury).

ISSUE

A contested case hearing was held on September 19, 2016, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the Independent Review Organization that the Claimant is not entitled to the ACDF C3-C5 fusion with a 23-hour observation for the compensable injury of (Date of Injury)?
  2. PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by NA, ombudsman. Respondent/Carrier appeared and was represented by RR, attorney.

EVIDENCE PRESENTED

Witnesses for Claimant/Petitioner: Claimant.

Witnesses for Carrier/Respondent: None.

The following exhibits were admitted into evidence:

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

Evidence for Claimant/Petitioner: Exhibits CL-1 through CL-9.

Evidence for Carrier/Respondent: Exhibits CR-A through CR-D.

DISCUSSION

Claimant sustained a compensable injury on (Date of Injury), when she fell backward into a file cabinet, injuring her right hip and cervical spine. She received conservative treatment, including medication, physical therapy, and an epidural steroid injection. Claimant’s referral doctor, Christopher Webb, M.D., recommended the ACDF C3-C5 fusion with a 23-hour observation currently in dispute. The procedure was denied by the Carrier.

An Independent Review Organization (IRO) assessment was requested. I-Resolutions was appointed to act as IRO by the Texas Department of Insurance. A board certified neurosurgeon was the reviewer through I-Resolutions. The reviewer upheld the Carrier’s denial of the requested surgery because there was an absence of convincing documentation of cervical radiculopathy, no evidence of instability documented on imaging, no evidence of cord contact or compression, and no evidence of foraminal stenosis or nerve root impingement. According to the reviewer, although Claimant remains symptomatic despite conservative treatment, “the limited physical examination and imaging findings would not support the surgical 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(s), "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, 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."

On the date of this medical contested case hearing, the ODG provides the following with regard to the requested procedure:

ODG Criteria for Cervical Fusion:

(1) Acute traumatic spinal injury (fracture or dislocation) resulting in cervical spinal instability.

(2) Osteomyelitis (bone infection) resulting in vertebral body destruction.

(3) Primary or metastatic bone tumor resulting in fracture instability or spinal cord compression.

(4) Cervical nerve root compression verified by diagnostic imaging (i.e., MRI or CT myelogram) and resulting in severe pain OR profound weakness of the extremities.

(5) Spondylotic myelopathy based on clinical signs and/or symptoms (Clumsiness of hands, urinary urgency, new-onset bowel or bladder incontinence, frequent falls, hyperreflexia, Hoffmann sign, increased tone or spasticity, loss of thenar or hypothenar eminence, gait abnormality or pathologic Babinski sign) and Diagnostic imaging (i.e., MRI or CT myelogram) demonstrating spinal cord compression.

(6) Spondylotic radiculopathy or nontraumatic instability with ALL of the following criteria:

(a) Significant symptoms that correlate with physical exam findings AND radiologist-interpreted imaging reports.

(b) Persistent or progressive radicular pain or weakness secondary to nerve root compression or moderate to severe neck pain, despite 8 weeks conservative therapy with at least 2 of the following:

- Active pain management with pharmacotherapy that addresses neuropathic pain and other pain sources (e.g., an NSAID, muscle relaxant or tricyclic antidepressant);

- Medical management with oral steroids, facet or epidural injections;

- Physical therapy, documented participation in a formal, active physical therapy program as directed by a physiatrist or physical therapist, may include a home exercise program and activity modification, as appropriate.

(c) Clinically significant function limitation, resulting in inability or significantly decreased ability to perform normal, daily activities of work or at-home duties.

(d) Diagnostic imaging (i.e., MRI or CT myelogram) demonstrates cervical nerve root compression, or Diagnostic imaging by x-ray demonstrates Instability by flexion and extension x-rays; Sagittal plane translation >3mm; OR Sagittal plane translation >20% of vertebral body width; OR Relative sagittal plane angulation >11 degrees.

(e) Not recommend repeat surgery at the same level.

(f) Tobacco cessation: Because of the high risk of pseudoarthrosis, a smoker anticipating a spinal fusion should adhere to a tobacco-cessation program that results in abstinence from tobacco for at least six weeks prior to surgery.

(g) Number of levels: When requesting authorization for cervical fusion of multiple levels, each level is subject to the criteria above. Fewer levels are preferred to limit strain on the unfused segments. If there is multi-level degeneration, prefer limiting to no more than three levels. With one level, there is approximately a 80% chance of benefit, for a two-level fusion it drops to around 60%, and for a three-level fusion to around 50%. But not fusing additional levels meeting the criteria, risks having to do future operations.

(h) The decision on technique (e.g., autograft versus allograft, instrumentation) should be left to the surgeon.

At the Contested Case Hearing, Claimant did not provide evidence-based medicine in support of her requested ACDF C3-C5 fusion with a 23-hour observation. Based on the evidence presented, Claimant failed to prove that she meets the requirements in the ODG for the requested procedure and she failed to provide an evidence-based medical opinion 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 an ACDF C3-C5 fusion with a 23-hour observation 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 Workers’ Compensation Division of the Texas Department of Insurance.

B.On (Date of Injury), Claimant was the employee of the (Employer), Employer.

C.On (Date of Injury), Claimant sustained a compensable injury.

D.On (Date of Injury), Employer was a self-insured governmental entity for the purpose of workers’ compensation.

  • The Carrier delivered to the Claimant a single document stating the true corporate name of the Carrier, and the name and street address of the Carrier’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  • I-Resolutions was appointed to act as Independent Review Organization by the Texas Department of Insurance.
  • The IRO determined that the Claimant was not entitled to the ACDF C3-C5 fusion with a 23-hour observation for the compensable injury of (Date of Injury).
  • Claimant does not meet the ODG requirements for the proposed procedure and she failed to provide evidence-based medical evidence in support of the requested procedure.
  • The ACDF C3-C5 fusion with a 23-hour observation is not health care reasonably required for the compensable injury of (Date of Injury).
  • CONCLUSIONS OF LAW

    1. The Workers’ Compensation Division of the Texas Department of Insurance 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 Independent Review Organization that the Claimant is not entitled to an ACDF C3-C5 fusion with a 23-hour observation for the compensable injury of (Date of Injury).

    DECISION

    The preponderance of the evidence is not contrary to the decision of the Independent Review Organization that the Claimant is not entitled to an ACDF C3-C5 fusion with a 23-hour observation 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 (a self-insured governmental entity),and the name and address of its registered agent for service of process is:

    For service in person, the address is:

    (a Self-Insured Governmental Entity)

    300 W. 15TH STREET

    WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR

    AUSTIN, TEXAS 78701

    For service by mail, the address is:

    (a Self-Insured Governmental Entity)

    P.O. BOX 13777

    AUSTIN, TEXAS 78711-3777

    Signed this 19th day of September, 2016.

    Carolyn Cheu Mobley
    Hearing Officer

    End of Document
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