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At a Glance:
Title:
17009-nr
Date:
August 18, 2017
Type:

17009-nr

August 18, 2017

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Hearing Officer determines that the preponderance of the evidence is not contrary to the decision of the IRO that right shoulder rotator cuff repair, subacromial decompression and SLAP repair are not health care reasonably required for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

A contested case hearing (CCH) was held on July 27, 2017, to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that the claimant is not entitled to right shoulder rotator cuff repair, subacromial decompression and SLAP repair for the compensable injury of (Date of Injury)?

Claimant did not appear at the CCH so a 10-day letter was sent to Claimant. Having not received an answer from the Claimant, the record closed on August 18, 2017.

PARTIES PRESENT

Petitioner/Claimant was not present. Claimant’s representative, LT, attorney was present. Respondent/Carrier appeared and was represented by LM, attorney.

EVIDENCE PRESENTED

No witnesses testified.

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-A through CR-F.

DISCUSSION

Although properly notified, Claimant failed to appear for the CCH scheduled for 2:00 pm on July 27, 2017. A letter advising that the hearing had convened and that the record would be held open for ten days to afford Claimant the opportunity to respond and request that the hearing be reschedule to permit her to present additional evidence on the disputed issue was mailed to Claimant on August 2, 2017. Claimant failed to respond to the Division’s 10-day letter and the record closed on August 18, 2017. Claimant’s representative and Carrier’s representative both presented evidence.

The claimant sustained a compensable injury on (Date of Injury), to the right shoulder for which her treatment has consisted of medications, physical therapy, and an injection. The claimant's requesting doctor, Dr. LJ, initially requested a right shoulder arthroscopic rotator cuff repair, right shoulder arthroscopic subacromial decompression and right shoulder manipulation under anesthesia. This initial request for surgery was not certified. Based upon an October 26, 2016, Decision and Order, the compensable injury of (Date of Injury) extended to and included a right shoulder sprain/strain, right rotator cuff partial thickness tear, right shoulder impingement syndrome and right shoulder adhesive capsulitis. After receipt of the Decision and Order, Dr. J submitted the request for right shoulder surgery that is at issue at this CCH. On February 7, 2017, the procedures were initially denied by the Utilization Review Agent (URA) citing that there was no evidence to support the necessity of the surgery since the MRI report only showed a partial tear on the bursal aspect of the supraspinatus and no evidence of a gross labral tear. A second URA upheld the denial for the procedures. On April 7, 2017, the Independent Review Organization (IRO) also upheld the previous adverse determinations citing that Claimant has only a partial bursal-sided rotator cuff tear, with no gross labral tear, per interpretation of the MRI report and Claimant had an injection with no recordable or reported relief. The IRO determined that the request did not conform to the Official Disability Guidelines (ODG) and Treatment Guidelines.

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."

With regard to surgery for a rotator cuff repair the ODG states:

ODG Indications for Surgery™ -- Rotator cuff repair:

Criteria for rotator cuff repair with diagnosis of moderate to large full-thicknessrotator cuff tear AND cervical pathology and frozen shoulder syndrome have been ruled out:

  1. Subjective Clinical Findings: Shoulder pain and inability to elevate the arm; tenderness over the greater tuberosity is common in acute cases. PLUS
  2. Objective Clinical Findings: Patient may have weakness with abduction testing. May also demonstrate atrophy of shoulder musculature. Usually has full passive range of motion. PLUS
  3. Imaging Clinical Findings: Conventional x-rays, AP, and true lateral or axillary views. AND MRI, ultrasound, or arthrogram shows positive evidence of deficit in rotator cuff.

Criteria for rotator cuff repair AND/OR anterior acromioplasty with diagnosis of small full-thickness or partial-thickness rotator cuff tear OR acromial impingement syndrome (80% of these patients will get better without surgery.)

  1. Conservative Care: Recommend 3 to 6 months: Three months is adequate if treatment has been continuous, six months if treatment has been intermittent. Treatment must be directed toward gaining full ROM, which requires both stretching and strengthening to balance the musculature. PLUS
  2. Subjective Clinical Findings: Pain with active arc motion 90 to 130 degrees. AND Pain at night (Tenderness over the greater tuberosity is common in acute cases.) PLUS
  3. Objective Clinical Findings: Weak or absent abduction; may also demonstrate atrophy. AND Tenderness over rotator cuff or anterior acromial area. AND Positive impingement sign and temporary relief of pain with anesthetic injection (diagnostic injection test). PLUS
  4. Imaging Clinical Findings: Conventional x-rays, AP, and true lateral or axillary view. AND MRI, ultrasound, or arthrogram shows positive evidence of deficit in rotator cuff.
  5. (Washington, 2002)

With regards to surgery for subacromial decompressionthe ODG states:

See Surgery for impingement syndrome

Recommend acromioplasty for acromial impingement syndrome as indicated below, after at least 3-6 months of conservative care. Not recommended in conjunction with full-thickness rotator cuff repair. (Abrams, 2014)

ODG Indications for Surgery™ -- Acromioplasty:

Criteria for anterior acromioplasty with diagnosis of acromial impingement syndrome (80% of these patients will get better without surgery.)

  1. Conservative Care: Recommend 3 to 6 months: Three months is adequate if treatment has been continuous, six months if treatment has been intermittent. Treatment must be directed toward gaining full ROM, which requires both stretching and strengthening to balance the musculature. PLUS
  2. Subjective Clinical Findings: Pain with active arc motion 90 to 130 degrees. AND Pain at night. PLUS
  3. Objective Clinical Findings: Weak or absent abduction; may also demonstrate atrophy. AND Tenderness over rotator cuff or anterior acromial area. AND Positive impingement sign and temporary relief of pain with anesthetic injection (diagnostic injection test). PLUS
  4. Imaging Clinical Findings: Conventional x-rays, AP, and true lateral or axillary view. AND MRI, ultrasound, or arthrogram shows positive evidence of impingement. (Washington, 2002)

With regard to surgery for SLAP lesions the ODG states:

Criteria for Surgery for SLAP lesions:

  • -After 3 months of conservative treatment (NSAIDs, injection and PT) with symptoms and/or activity limitations significant enough to justify surgery.
  • -History, physical examination and imaging (which can only accurately rule out) indicate high likelihood of SLAP tear (beware confusion with anterior sublabral recess or Buford complex in up to 25% of the population); review by musculoskeletal radiologist can increase accuracy of diagnosis.
  • -Definitive diagnosis of SLAP lesions is only by diagnostic arthroscopy.

Direct Repair:

  • -Isolated Type II lesions (detachment of superior labrum).
  • -Isolated Type IV lesions (more than 50% of the tendon is involved, vertical tear, bucket-handle tear of the superior labrum, which extends into biceps, intrasubstance tear).
  • -Age under 40 (otherwise consider Biceps tenodesis).
  • -Avoid direct repair for revision SLAP surgery and with associated large rotator cuff repair (biceps tenotomy preferred).
  • -Worse outcomes can be anticipated with overhead throwers and injured workers.
  • -SLAP repair with simultaneous anterior/anterior-inferior, or posterior/posterior-inferior labral repair; with documentation of prior dislocation(s) or clear instability on exam and correlating imaging.

Dr. J did not provide oral testimony, but in evidence were some of his medical notes and a reference to a January 13, 2017, peer to peer discussion from the initial request for surgery. In this discussion the reviewer reported that Dr. J stated that “clinically, the patient more than likely has a full-thickness tear of the rotator cuff.” Yet in the January 13, 2017, clinic note Dr. J reported: “MRI of the right shoulder shows partial thickness tear of supraspinatus tendon and labral tear.” This inconsistency was not explained. Also, there was no evidence to support that Claimant had relief of pain due to the injection, as required by the ODG.

No doctor provided evidence based medical evidence to support or overcome the protocol listed in the ODG for the requested procedures. After a careful review of all the evidence presented, Claimant has failed to prove that the preponderance of the evidence based medical evidence is contrary to the IRO decision.

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:
    1. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation
    2. On (Date of Injury), Claimant was the employee of (Employer), Employer.
    3. The claimant sustained a compensable injury on (Date of Injury).
    4. The IRO determined that Claimant is not entitled to right shoulder rotator cuff repair, subacromial decompression and SLAP repair for the compensable injury of (Date of Injury).
  2. The Division sent a single document stating the true corporate name of the Carrier, and the name and street address of Carrier’s registered agent for service with the 10-day letter to the Claimant at Claimant’s address of record. That document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  3. Claimant failed to appear for the July 27, 2017, contested case hearing and did not respond to the Division’s letter offering her the opportunity to have the hearing rescheduled.
  4. As explained by her attorney, Claimant failed to appear at the contested case hearing because of a family medical emergency.
  5. Claimant had good cause for failing to appear at the July 27, 2017 contested case hearing.
  6. The claimant did not present evidence based medicine contrary to the IRO's determination that the claimant is not entitled to right shoulder rotator cuff repair, subacromial decompression and SLAP repair for the compensable injury of (Date of Injury).
  7. Right shoulder rotator cuff repair, subacromial decompression and SLAP repair are 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 rotator cuff repair, subacromial decompression and SLAP repair are not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to right shoulder rotator cuff repair, subacromial decompression and SLAP repair 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 HARTFORD UNDERWRITERS INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201063

Signed this 18th day of August, 2017.

Judy L. Ney
Hearing Officer

End of Document
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