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 outpatient right shoulder arthroscopy with rotator cuff repair for the compensable injury of (Date of Injury).
A contested case hearing was held on November 8, 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 outpatient right shoulder arthroscopy with rotator cuff repair for the compensable injury of (Date of Injury)?
Petitioner/Claimant appeared and was assisted by NA, ombudsman.
Respondent/Carrier appeared and was represented by GP, adjuster.
The following witnesses testified:
For Petitioner/Claimant: Claimant.
For Respondent/Carrier: None.
The following exhibits were admitted into evidence:
Administrative Law Judge’s Exhibits ALJ-1 through ALJ-3.
Claimant’s Exhibits C-1 through C-8.
Carrier’s Exhibits CR-A through CR-D.
Claimant sustained a compensable injury to her bilateral shoulders on (Date of Injury). Claimant’s orthopedist, JH, M.D., recommended rotator cuff repair. He performed surgery to her left shoulder on May 11, 2016. After the post-operative physical therapy, Dr. H recommended outpatient right shoulder arthroscopy with rotator cuff repair, which was denied by Carrier and appealed to an IRO.
The IRO reviewer, identified as a board certified orthopedic surgeon, upheld Carrier’s denial and determined that the requested outpatient right shoulder arthroscopy with rotator cuff repair was not medically necessary. The IRO reviewer noted that the Official Disability Guidelines (ODG) requires subjective, objective, and imaging findings to support the necessity for rotator cuff repair. The IRO reviewer explained that while the December 18, 2015 MRI of the right shoulder “clearly demonstrated a retracted rotator cuff tear and muscle atrophy,” the IRO reviewer could not find subjective or objective clinical documentation regarding the right shoulder to support the need for a right shoulder rotator cuff repair following Claimant’s completion of physical therapy for her left shoulder. The IRO reviewer stated that Claimant is nearly two years out from her injury, and noted the clinical visits that reported no objective complaints regarding the right shoulder, and concluded there was insufficient physical exam evidence to support the need for repair other than “diffuse ttp” and “equivocal Hawkins” reported on the October 4, 2016 progress note. As such, the IRO reviewer concluded that medical necessity was not established in accordance with current evidence-based medical 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 §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 under 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 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 Indications for Surgery -- Rotator cuff repair:
Criteria for rotator cuff repair with diagnosis of moderate to large full-thickness rotator cuff tear AND cervical pathology and frozen shoulder syndrome have been ruled out:
- Subjective Clinical Findings: Shoulder pain and inability to elevate the arm; tenderness over the greater tuberosity is common in acute cases. PLUS
- 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
- 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.
Carrier relied on the determination of the IRO and the utilization review determinations while Claimant relied on her testimony and medical records in evidence. Claimant testified she obtained authorization for the right shoulder rotator cuff repair but Dr. H had wanted to perform surgery on her left shoulder first. She argued that the right shoulder rotator cuff repair was initially approved and considered medically necessary and that the medical records reveal the objective and subjective findings to her right shoulder as required under the ODG.
Based on the evidence presented, Claimant does not meet the requirements in the ODG for the requested rotator cuff repair, 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 outpatient right shoulder arthroscopy with rotator cuff repair.
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
- The parties stipulated to the following facts:
Carrier delivered to Petitioner/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.
- Venue is proper in the (City) Office of the Texas Department of Insurance, Division of Workers’ Compensation.
- On (Date of Injury), Claimant was the employee of (Employer), Employer.
- Claimant does not meet the recommendations of the ODG for outpatient right shoulder arthroscopy with rotator cuff repair.
- Claimant failed to present evidence-based medical evidence sufficient to overcome the determination of the IRO.
- Outpatient right shoulder arthroscopy with rotator cuff repair is not health care reasonably required for the compensable injury of (Date of Injury).
CONCLUSIONS OF LAW
- The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
- Venue is proper in the (City) Office.
- The preponderance of the evidence is not contrary to the decision of the IRO that outpatient right shoulder arthroscopy with rotator cuff repair is not health care reasonably required for the compensable injury of (Date of Injury).
Claimant is not entitled to outpatient right shoulder arthroscopy with rotator cuff repair for the compensable injury of (Date of Injury).
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 New hampshire insurance company and the name and address of its registered agent for service of process is
CORPORATE SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TX 78701
Signed this 15th day of November, 2017.
Dee Marlo Chico
Administrative Law Judge