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At a Glance:
Title:
16046-nnr
Date:
November 29, 2016

16046-nnr

November 29, 2016

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Division of Workers’ Compensation. For the reasons discussed herein, the Hearing Officer determines that Claimant is not entitled to physical therapy three times per week for four weeks for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

A contested case hearing was held on November 17, 2016 to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that Claimant is not entitled to physical therapy three times per week for four weeks for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by DS, ombudsman. Respondent/Carrier appeared and was represented by PB, an attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Petitioner/Claimant:

Petitioner/Claimant

For Respondent/Carrier:

None:

The following exhibits were admitted into evidence:

Hearing Officer’s Exhibit HO-1 and HO-2

Petitioner/Claimant’s Exhibits C-1 through C-5

Respondent/Carrier’s Exhibits CR-A through CR-G

DISCUSSION

It was undisputed that the Claimant sustained a compensable injury to at least her right knee on (Date of Injury) while working for the (Employer). She was diagnosed by CT, M.D. with a right knee anterior cruciate ligament (ACL) tear and right knee strain. Dr. CT has opined that Claimant will eventually need surgical diagnostic arthroscopy and probable arthroscopic partial lateral meniscectomy and anterior cruciate ligament reconstructions; however, Claimant has chosen to avoid surgery and treat conservatively. Claimant indicated that she wishes to avoid surgery if possible, and the requested physical therapy will strengthen her leg and possibly help her function without surgery. Claimant treatment has included physical therapy times 18 in 2015 and physical therapy times 8 in 2016.

Dr. CT’s request for the proposed physical therapy three times per week for four weeks was denied by two Utilization Review Agents (URAs) – one on an initial review, the other following a request for reconsideration. After the adverse determination on reconsideration by the URA, Dr. CT appealed to an Independent Review Organization (IRO). The IRO reviewer, a medical doctor who is board certified in physical medicine and rehabilitation, upheld the URA denial of the additional treatment. The IRO reviewer determined that the requested physical therapy three times per week for four weeks was not health care reasonably required for Claimant’s compensable injury of (Date of Injury). As part of the IRO report, on July 31, 2016, the IRO reviewer noted that Claimant has completed 26 physical therapy visits. It was noted that the Official Disability Guidelines (ODG) permit up to 12 visits over 8 weeks in therapy for knee sprain and cruciate ligament (ACL) tear. The IRO reviewer indicated that there was no clear rationale provided to support exceeding this recommendation. Petitioner appealed the IRO decision and requested this MCCH to determine the medical necessity of the cruciate ligament (ACL) tear of physical therapy three times per week for four weeks.

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 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 (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 ACL injury rehabilitation, the relevant provisions of the ODG applicable to this case are as follows:

Recommended as indicated below. Studies that compare at-home rehab to supervised rehab for patients who have had an ACL injury are of low quality and show that more studies are necessary before a conclusion can be drawn as to the most effective therapy. (Beard, 1998) (Thomson-Cochrane, 2002) One meta-analysis compared studies to examine the evidence for effectiveness of various physical therapist-led rehabilitation programs, and of various interventions used within these programs, for rehabilitation of acute or chronic ACL, MCL or meniscal injuries of the knee in adults. The reviewer concluded that the available evidence for physical therapist-led rehabilitation of ACL, MCL and meniscal injuries is wide ranging in terms of scope but insufficient to establish the relative effectiveness of the various approaches and methods in current use. (Thomson, 2002) A trial testing the efficacy of a 6-week rehabilitation program determined that six weeks rehabilitation is too short a time period from original injury to obtain normal mobility and restored knee function. (Zatterstrom, 1998) A 12-month follow-up of a controlled trial that tested supervised versus self-monitored training and rehabilitation for ACL repair determined that initial guidance is an important part of the rehabilitation process. Zatterstrom, 2000) Knee bracing after ACL reconstruction appears to be largely useless, according to a systematic review. Range-of-motion, strengthening, and functional exercises remain the cornerstone of postoperative ACL rehabilitation. The most important rehab for ACL surgery patients is to start physical therapy early and rigorously. Postoperative bracing did not protect against reinjury, decrease pain, or improve stability. Accelerated rehabilitation (starting at 3 weeks postoperatively rather than the traditional 3 months and intended to reduce the usual 6-month time for return to activity) was considered to be safe according to this review. The authors conclude that immediate postoperative weight-bearing, range of knee motion from 0° to 90° of flexion, and strengthening with closed-chain exercises are likely to be safe. They also suggest that starting eccentric quadriceps strengthening and isokinetic hamstring strengthening at week 3 after surgery may accelerate recovery. The reviewers found promising data for home-based rehabilitation for the motivated patient, but found doubtful support for neuromuscular training such as proprioceptive and balance training, perturbation training, and vibratory stimulation. (Kruse, 2012) This systematic review on methods of rehabilitation after ACL reconstruction concluded that postoperative bracing had no benefit, accelerated strengthening improved outcomes, home-based rehabilitation was as successful over the long term, and there were some small short-term benefits to proprioceptive training. (Grant, 2013) See also Physical Therapy Guidelines.

ODG Physical Medicine Guidelines: Sprains and strains of knee and leg;

Cruciate ligament of knee (ACL tear) (ICD9 844; 844.2):

Sprains and strains of knee and leg; Cruciate ligament of knee (ACL tear): 12 visits over 8 weeks

Petitioner/Claimant as the party challenging the IRO decision has the burden of proof to overcome that decision by the preponderance of evidence-based medical evidence. Evidence-based medical evidence entails the opinion of a qualified expert that has some basis in evidence-based medicine. Expert evidence is required in all medical necessity disputes and Petitioner/Claimant’s lay testimony is not probative on questions requiring expert evidence, such as the inquiry into the medical necessity of the procedure at issue.

In order to prevail, Claimant must show one of three things: that her proposed treatment is consistent with the ODG, that evidence-based medicine exists that is more persuasive than the ODG, or that the requested treatment is not addressed by the ODG. As the proposed therapy is addressed by the ODG, as set forth above, and as the IRO decision indicates that Claimant has already undergone the physical therapy endorsed by the ODG, Claimant cannot meet her burden of proof through either the first or the last listed method for doing so, and must instead produce persuasive evidence-based medical evidence in order to prevail. Claimant asserted that her initial diagnosis was for a right knee strain; therefore, the initial physical was not designed to treat her ACL tear. This argument is not persuasive because the relevant ODG Physical Medical Guidelines apply to sprains and strains of knee and leg; cruciate ligament of knee (ACL tear). Claimant provided a note from treating doctor, CT, M.D., in which Dr. CT recommended physical therapy, which is not considered evidence-based medical evidence, as that term is statutorily defined, additionally it is date February 25, 2016. Claimant also presented a September 2, 2016 letter from her Dr. CT who wrote that Claimant continues to have problems with her knee and will eventually need surgery. The record includes the October 6, 2016 report from the Division-appointed designated doctor, LI, D.C., who opined that Claimant has exceeded ODG Guidelines allowed physical therapy for a right knee injury, and she continues to have significant subjective symptoms and clinical objective findings. According to Dr. LI, Claimant understands that surgical repair of her torn ACL may give her the best chance to recover from this injury. Since Claimant has not succeeded in overcoming the decision of the IRO by any accepted route, a decision in favor of Carrier is appropriate as to the issue presented for resolution.

Petitioner/Claimant failed to show that she is entitled to the relief that she seeks. As the preponderance of the evidence is not contrary to the decision of the IRO that the requested physical therapy three times per week for four weeks is not health care reasonably required for the compensable injury of (Date of Injury), Claimant is held not to be entitled to that treatment.

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. The Texas Department of Insurance Division of Workers Compensation has jurisdiction in this matter

B. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

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

D. On (Date of Injury), Employer provided workers’ compensable insurance with (Carrier), Carrier.

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

F. The IRO determined that Claimant should not have physical therapy three times per week for four weeks 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.
  • Medical Health Review, Inc. was appointed as the IRO to review Carrier’s denial physical therapy three times per week for four weeks for the compensable injury of (Date of Injury).
  • The IRO upheld Carrier’s denial of physical therapy three times per week for four weeks for the compensable injury of (Date of Injury).
  • The preponderance of the evidence-based medical evidence is not contrary to the IRO’s determination that physical therapy three times per week for four weeks does not constitute reasonable and necessary health care for the compensable injury of (Date of Injury).
  • Physical therapy three times per week for four weeks is not reasonably required health care 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 Independent Review Organization (IRO) that physical therapy three times per week for four weeks is not health care reasonably required for the compensable injury of (Date of Injury).

    DECISION

    Claimant is not entitled to physical therapy three times per week for four weeks 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 (Carrier), and the name and address of its registered agent for service of process is

    CT CORPORATION SYSTEM
    350 NORTH ST. PAUL STREET
    DALLAS, TEXAS 75201

    Signed this 29th day of November, 2016.

    Early Moye


    Hearing Officer

    End of Document
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