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At a Glance:
Title:
17013-nnr
Date:
October 31, 2017

17013-nnr

October 31, 2017

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 Administrative Law Judge determines that Claimant is not entitled to the ACDF at C5-7 for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On October 31, 2017, Mayson Pearson, a Division administrative law judge, 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 Claimant is not entitled to the a ACDF at C5-7 for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by CC, ombudsman. Respondent/Carrier appeared and was represented by JR, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: Claimant

For Carrier: None

The following exhibits were admitted into evidence:

Administrative Law Judge’s Exhibits: ALJ-1 and AJL-2

Claimant’s Exhibits: C-1 through C-7

Carrier’s Exhibits: CR-A through CR-F

DISCUSSION

Claimant sustained a compensable injury on (Date of Injury) while working as a gate agent. Claimant testified that injury occurred after she lifted a piece of luggage. Claimant is treating with MB, M.D. Dr. B recommended ACDF at C5-7.

Carrier denied the request for the anterior cervical discectomy and fusion (ACDF) recommended by Dr. B, and Claimant sought review by an IRO. The IRO reviewer, identified as a specialist in Neurological Surgery, upheld the Carrier’s denial. The IRO reviewer referred to the lack of specific neurological findings consistent with a C5-C6 and/or C6-C7 levels as deep tendon reflexes were normal, strength was normal and sensation was normal.

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(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 §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 §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 28 TAC §137.100. This section 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 28 TAC §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."

For the requested ACDF , the ODG provides:

Criteria for Cervical Fusion – Recommended Indications:

  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:
  7. (g)Significant symptoms that correlate with physical exam findings AND radiologist-interpreted imaging reports.
  8. (h)Persistent or progressive radicular pain or weakness secondary to nerve root compression or moderate to severe neck pain, despite 8 weeks of conservative therapy with at least 2 of the following:
  9. -Active pain management with pharmacotherapy that addresses neuropathic pain and other pain sources (e.g., an NSAID, muscle relaxant or tricyclic antidepressant);
  10. -Medical management with oral steroids or injections;
  11. -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.
  12. (l)Clinically significant function limitation, resulting in inability or significantly decreased ability to perform normal, daily activities of work or at-home duties.
  13. (m)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 >3 mm; OR Sagittal plane translation >20% of vertebral body width; OR Relative sagittal plane angulation >11 degrees.
  14. (n)Not recommend repeat surgery at the same level.
  15. (o)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.
  16. (p)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 an 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.
  17. (q)The decision on technique (e.g., autograft versus allograft, instrumentation) should be left to the surgeon.

Claimant presented her medical records and the designated doctor’s report of Dr. KP in support of her position that the ACDF at C5-7 met the applicable ODG criteria. Dr. B noted on April 20, 2017 that Claimant had tried conservative treatments without success and based on the imagine findings he recommended the disputed procedure. However, as stated by the IRO reviewer and set out by the applicable ODG criteria, there must be reflex, sensory, or motor deficits consistent with the levels to be treated. The medical records do not establish that Claimant has met this requirement.

Considering the medical evidence in the record, the Administrative Law Judge determines that Claimant has not met her burden to overcome the decision of the IRO by a preponderance of evidence-based medical evidence. Therefore, it is determined that Claimant is not entitled to the ACDF at C5-7 for the compensable injury of (Date of Injury).

The Administrative Law Judge 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:
    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. On (Date of Injury), Employer provided workers’ compensation coverage with Indemnity Insurance Company of North America, Carrier.
    4. Claimant sustained a compensable injury on (Date of Injury).
    5. The IRO determined that the a ACDF at C5-7 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 Administrative Law Judge’s Exhibit Number 2.
  3. Claimant did not meet the requirements of the ODG for the ACDF at C5-7 and did not provide evidence-based medical studies to support the medical necessity of this operation.
  4. The ACDF at C5-7 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 the ACDF at C5-7 is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to the ACDF at C5-7 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 Labor Code §408.021.

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, and the name and address of its registered agent for service of process is:

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TX 75201-3136

Signed this 31st of October, 2017.

Mayson Pearson
Administrative Law Judge

End of Document
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