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 determined that: (1) the preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that the Claimant/Petitioner is not entitled to microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant; and (2) Claimant/Petitioner did not timely appeal the IRO decision.
STATEMENT OF THE CASE
On December 30, 2019, Kara Squier, a Division administrative law judge, held a contested case hearing to decide the following disputed issues:
- Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant?
- Did the Claimant/Petitioner timely appeal the IRO decision?
Claimant/Petitioner appeared and was assisted by DM, ombudsman. Insurance Carrier/Respondent appeared and was represented by PW, attorney.
The following witnesses testified:
For Claimant/Petitioner: Claimant.
For Insurance Carrier/Respondent: None.
The following exhibits were admitted into evidence:
Administrative Law Judge’s Exhibits: ALJ-1 through ALJ-3.
Claimant/Petitioner’s Exhibits: C-1 through C-8.
Insurance Carrier/Respondent’s Exhibits: CR-A through CR-E.
It is undisputed that Claimant/Petitioner sustained a compensable injury on (Date of Injury). Claimant testified that he worked for the employer as a facilities specialist, and he sustained an injury to his low back when he twisted to lift a box off a table. Claimant/Petitioner’s orthopedic surgeon, MK, M.D., requested preauthorization of microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant. On July 11, 2019, the utilization review agent, MN, M.D., sent out a decision in which she determined the requested surgery was not medically necessary in accordance with the Official Disability Guidelines (ODG). Dr. K submitted a second pre-authorization request, and on August 8, 2019, CR, M.D, the second utilization review agent, submitted a denial indicating the requested treatment was not medically necessary in accordance with the ODG. Due to the previous denials, Claimant/Petitioner requested a review by an independent review organization (IRO). The IRO reviewer upheld the previous denials, and Claimant/Petitioner appealed by requesting a medical contested case hearing.
Timeliness of Appeal
28 Texas Administrative Code (TAC) §133.308(s)(1)(A) states, to wit:
The written appeal must be filed with the Division's Chief Clerk of Proceedings no later than the later of the 20th day after the effective date of this section or 20 days after the date the IRO decision is sent to the appealing party and must be filed in the form and manner required by the Division. Requests that are timely submitted to a Division location other than the Division's Chief Clerk of Proceedings, such as a local field office of the Division, will be considered timely filed and forwarded to the Chief Clerk of Proceedings for processing; however, this may result in a delay in the processing of the request.
In this particular case, the IRO decision was issued and sent to the parties on September 16, 2019. The applicable deadline for the filing of the appeal of the IRO decision in this case was 20 days from the date the IRO decision was sent to the parties. In evidence is a request to schedule a medical contested case hearing signed by Claimant/Petitioner on October 15, 2019, and filed with the Division on October 21, 2019. Considering the IRO decision is dated September 16, 2019, Claimant/Petitioner’s request to schedule a medical contested case hearing was not timely. However, an assertion, or finding, that an appeal is untimely under 28 TAC §133.308 does not deprive the Division of subject matter jurisdiction to decide the disputed issue. The untimeliness of the appeal is a defense to the Insurance Carrier’s ultimate liability for the services or bill in question. See Medical Contested Case Hearing Decision No. 09122, M6-09-13618-01, citingIgal v. Brightstar Info. Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000); and City of Seabrook v. Port of Houston Auth., 199 S.W.3d 403 (Tex. App.-Houston [1st Dist.] 2006, pet. abated).
Texas Workers’ Compensation Act: 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 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 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. 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 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 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 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.
The ODG provides the following with regard to discectomy:
Required symptoms/findings; imaging studies; and conservative treatments below:
- Symptoms/Findings which confirm presence of radiculopathy. Objective findings on examination need to be present. Straight leg raising test, crossed straight leg raising and reflex exams should correlate with symptoms and imaging.
Findings require ONE of the following:L3 nerve root compression, requiring ONE of the following:
- Severe unilateral quadriceps weakness/mild atrophy
- Mild-to-moderate unilateral quadriceps weakness
- Unilateral hip/thigh/knee pain
L4 nerve root compression, requiring ONE of the following:
- Severe unilateral quadriceps/anterior tibialis weakness/mild atrophy
- Mild-to-moderate unilateral quadriceps/anterior tibialis weakness
- Unilateral hip/thigh/knee/medial pain
L5 nerve root compression, requiring ONE of the following:
- Severe unilateral foot/toe/dorsiflexor weakness/mild atrophy
- Mild-to-moderate foot/toe/dorsiflexor weakness
- Unilateral hip/lateral thigh/knee pain
S1 nerve root compression, requiring ONE of the following:
- Severe unilateral foot/toe/plantar flexor/hamstring weakness/atrophy
- Moderate unilateral foot/toe/plantar flexor/hamstring weakness
- Unilateral buttock/posterior thigh/calf pain
(EMGs are optional to obtain unequivocal evidence of radiculopathy but not necessary if radiculopathy is already clinically obvious.)
Imaging Studies, requiring ONE of the following, for concordance between radicular findings on radiologic evaluation and physical exam findings:
- Nerve root compression (L3, L4, L5, or S1)
- Lateral disc rupture
- Lateral recess stenosis
Diagnostic imaging modalities, requiring ONE of the following:
- MRI (magnetic resonance imaging)
- CT (computed tomography) scanning
- CT myelography and X-Ray
Conservative Treatments, requiring ALL of the following:
- Activity modification (not bed rest) after patient education (>= 2 months)
- Drug therapy, requiring at least ONE of the following:
- NSAID drug therapy
- Other analgesic therapy
- Muscle relaxants
- Epidural Steroid Injection (ESI)
Support provider referral, requiring at least ONE of the following (in order of priority):
- Physical therapy (teach home exercise/stretching)
- Manual therapy (chiropractor or massage therapist)
- Psychological screening that could affect surgical outcome
- Back school (Fisher, 2004)
For average hospital LOS after criteria are met, see Hospital length of stay (LOS).
For post-operative physical therapy recommendations after criteria are met, see Physical therapy (PT).
Risk versus Benefit:
The primary tradeoff is whether to undergo the risks of surgery, which are fairly small in this case, to achieve good short-run improvement of symptoms (success rate > 80%) faster than could also be achieved from conservative treatment alone. Minor pain and discomfort may not be worth the risks of surgery and the recovery time from surgery, depending on the patient's tolerance for risk, and there is no downside in delaying surgery. Patients whose pain is controlled in a manner that is acceptable to them may decide to postpone surgery in the hope that it will not be needed, without reducing their chances for complete recovery at 12 months. There is good evidence that discectomy is moderately superior to nonsurgical therapy for improvement in pain and function through 2 to 6 months, but patients on average experience improvement either with or without surgery, and benefits associated with surgery decrease with long-term follow-up. (Chou, 2009) (Chou, 2008) Similar evidence supports the use of surgery for spinal stenosis, but the outcomes look better with surgery out to approximately 2 years. (Malmivaara, 2007) In this trial, early surgery is associated with better short-term outcomes, but at 1 year, disability outcomes of early surgery vs conservative treatment (with eventual surgery if needed) are similar. The median time to recovery was 4.0 weeks for early surgery and 12.1 weeks for prolonged conservative treatment. (Peul, 2007) (Deyo, 2007) Consequently, for patients who don't want surgery no matter how bad their pain is, they will likely improve and they will not have complications from nonoperative treatment, but those patients whose leg pain is severe and is limiting their function, who meet the ODG criteria for discectomy, can do better in the short-term with surgery, and the risks are extremely low. (Weinstein2, 2008) In general, the risk of surgical complications is fairly small, approximately 3% for readmission and reoperation (Pugely, 2014), and 0.10% for death. (HCUP, 2011) For those receiving workers' compensation, surgery may not be better than non-surgical treatment for most patients, even in the short-run. (Atlas, 2010) (DeBerard, 2008) In workers' comp it is recommended to screen for presurgical biopsychosocial variables because they are important predictors of discectomy outcomes. (DeBerard, 2011) Obese patients have an increased risk of postoperative complications after lumbar spine surgery, but these are not associated with a greater risk of mortality. (Marquez-Lara, 2014) Smokers have much worse outcomes from lumbar decompression than nonsmokers, with an odds ratio for reoperation over 11. (Bydon, 2015) (Dewing, 2008)
NNH/NNT Without taking into account specific risk factors, like smoking, obesity, or workers' comp, the NNH (number needed to harm) is approximately 33, and the NNT (number needed to treat) for short-term improvement is approximately 1.2, but the NNT for long-term improvement is well over 10, compared to conservative treatment.
Surgical discectomy for carefully selected patients with radiculopathy due to lumbar disc prolapse provides faster relief from the acute attack than conservative management, although any positive or negative effects on the lifetime natural history of the underlying disc disease are still unclear. Unequivocal objective findings are required based on neurological examination and testing. (Gibson, 2000) (Malter, 1996) (Stevens, 1997) (Buttermann, 2004) (Chou, 2008) For unequivocal evidence of radiculopathy, see AMA Guides. (Andersson, 2000) Standard discectomy and microdiscectomy are of similar efficacy in treatment of herniated disc. (Bigos, 1999) While there is evidence in favor of discectomy for prolonged symptoms of lumbar disc herniation, in patients with a shorter period of symptoms but no absolute indication for surgery, there are only modest short-term benefits. (Osterman, 2006) The SPORT studies concluded that both lumbar discectomy and nonoperative treatment resulted in substantial improvement after 2 years, but those who chose discectomy reported somewhat greater improvements than patients who elected nonoperative care. (Weinstein, 2006) (Weinstein, 2006) In the treatment of patients with lumbar spinal stenosis, patients improved over the 2-year follow-up regardless of initial treatment, and those undergoing decompressive surgery reported greater improvement regarding leg pain, back pain, and overall disability, but the relative benefit of initial surgical treatment diminished over time while still remaining somewhat favorable at 2 years. (Malmivaara, 2007) Patients undergoing lumbar discectomy are generally satisfied with the surgery, but only half are satisfied with preoperative patient information. (Ronnberg, 2007) If patients are pain free, there appears to be no contraindication to their returning to any type of work after lumbar discectomy. A regimen of stretching and strengthening the abdominal and back muscles is a crucial aspect of the recovery process. (Burnett, 2006) Although both surgery and nonsurgery have similar outcomes after 1 year, early surgery remains a valid treatment option for well-informed patients. (Peul, 2007) (Deyo, 2007) There is no obvious additional benefit was noted by combining decompression with instrumented fusion. (Hallett, 2007) A British study found that lumbar discectomy improved patients' self-reported overall physical health more than other elective surgeries. (Guilfoyle, 2007) Microscopic sequestrectomy may be an alternative to standard microdiscectomy. In this RCT, both groups showed dramatic improvement. (Barth, 2008) Discectomy is moderately cost-effective compared with nonsurgical treatment, according to a SPORT study shows. The costs per quality-adjusted life-year gained with surgery compared with nonoperative treatment, including work-related productivity costs, ranges from $34,355 to $69,403, depending on the cost of surgery. It is wise and proper to wait before initiating surgery, but if the patient continues to experience pain and is missing work, then the higher-cost option such as surgery may be worthwhile. (Tosteson, 2008)
Four-year results for the Dartmouth Spine Patient Outcomes Research Trial indicated that patients who underwent standard open discectomy for a lumbar disc herniation achieved significantly greater improvement than non-operatively treated patients (using recommended treatments - active physical therapy, home exercise instruction, and NSAIDs) in all primary and secondary outcomes except work status (78.4% for the surgery group compared with 84.4%). Although patients receiving surgery did better generally, all patients in the study improved. (Weinstein2, 2008) In most patients with low back pain, symptoms resolve without surgical intervention. (Madigan, 2009) This study showed that surgery for disc herniation was not as successful as total hip replacement but was comparable to total knee replacement in success. (Hansson, 2008) Both standard open discectomy and microdiscectomy are moderately superior to nonsurgical therapy for improvement in pain and function through 2 to 3 months, but patients on average experience improvement either with or without surgery, and benefits associated with surgery decrease with long-term follow-up. (Chou, 2009) Use of appropriateness criteria to guide treatment decisions for each clinical situation involving patients with low back pain and/or sciatica, with criteria based upon literature evidence, along with shared decision-making, was observed in one prospective study to improve outcomes in low back surgery. (Danon-Hersch, 2010) An updated SPORT trial analysis confirmed that outcomes of lumbar discectomy were better for patients who have symptoms of a herniated lumbar disc for six months or less prior to treatment. Increased symptom duration was related to worse outcomes following both operative and nonoperative treatment, but the relative increased benefit of surgery compared with nonoperative treatment was not dependent on the duration. (Rihn, 2011) Comparative effectiveness evidence from SPORT shows good value for standard open discectomy after an imaging-confirmed diagnosis of intervertebral disc herniation [as recommended in ODG], compared with nonoperative care over 4 years. (Tosteson, 2011) Carefully selected patients who underwent surgery for a lumbar disc herniation (standard open discectomy) achieved greater improvement than non-operatively treated patients (active physical therapy, education/counseling with home exercise instruction, and NSAIDS), and there was little to no degradation of outcomes in either group (operative and nonoperative) from 4 to 8 years. (Lurie, 2014) Note: Surgical decompression of a lumbar nerve root or roots may include the following procedures: discectomy or microdiscectomy (partial removal of the disc) and laminectomy, hemilaminectomy, laminotomy, or foraminotomy (providing access by partial or total removal of various parts of vertebral bone). Discectomy is the surgical removal of herniated disc material that presses on a nerve root or the spinal cord. A laminectomy is often involved to permit access to the intervertebral disc in a traditional discectomy.
Patient Selection: Microdiscectomy for symptomatic lumbar disc herniations in patients with a preponderance of leg pain who have failed nonoperative treatment demonstrated a high success rate based on validated outcome measures (80% decrease in VAS leg pain score of greater than 2 points), patient satisfaction (85%), and return to work (84%). Patients should be encouraged to return to their preinjury activities as soon as possible with no restrictions at 6 weeks. Overall, patients with sequestered lumbar disc herniations fared better than those with extruded herniations, although both groups consistently had better outcomes than patients with contained herniations. Patients with herniations at the L5-S1 level had significantly better outcomes than did those at the L4-L5 level. (Dewing, 2008) Workers' comp back surgery patients are at greater risk for poor lumbar discectomy outcomes than noncompensation patients. (DeBerard, 2008) (DeBerard, 2011) Overweight and obese patients demonstrated an increased risk of postoperative complications after lumbar spine surgery, but these are not associated with a greater risk of mortality. (Marquez-Lara, 2014)
Spinal Stenosis: For patients with lumbar spinal stenosis, standard posterior decompressive laminectomy alone (without discectomy) offers a significant advantage over nonsurgical treatment. Discectomy should be reserved for those conditions of disc herniation causing radiculopathy. (See Indications below.) Laminectomy may be used for spinal stenosis secondary to degenerative processes exhibiting ligament hypertrophy, facet hypertrophy, and disc protrusion, in addition to anatomical derangements of the spinal column such as tumor, trauma, etc. (Weinstein, 2008) (Katz, 2008) A comparison of surgical and nonoperative outcomes between degenerative spondylolisthesis and spinal stenosis patients from the SPORT trial found that fusion was most appropriate for spondylolisthesis, with or without listhesis, and decompressive laminectomy alone most appropriate for spinal stenosis. (Pearson, 2010) See also Laminectomy.
The ODG provides the following for microdiscectomy:
Standard discectomy and microdiscectomy are of similar efficacy in treatment of herniated disc. (Bigos, 1999) Discectomy is surgery to remove lumbar disc material that is pressing on a nerve root or the spinal cord. It may be performed as microdiscectomy, using a microscope to view the disc and nerves, allowing use of a smaller incision. See Discectomy/ laminectomy for more information and references, and Criteria for use. This is not the same as minimally invasive surgery for discectomy, which is not recommended. For those procedures, see AccuraScope procedure (North American Spine); Laser discectomy; Mild® (minimally invasive lumbar decompression); Percutaneous discectomy (PCD); Percutaneous endoscopic laser discectomy (PELD).
The ODG provides the following for neurophysiological monitoring during surgery:
Recommended during spinal or intracranial surgeries when such procedures have a risk of significant complications that can be detected and prevented through use of neurophysiological monitoring. The following types of intraoperative monitoring may be necessary: somatosensory-evoked potentials, brainstem auditory-evoked potentials, EMG of cranial or spinal nerves, EEG, and electrocorticography (ECOG). Intraoperative EMG and nerve conduction velocity monitoring on peripheral nerves during surgery is not recommended. Intraoperative monitoring is not recommended for intraoperative visual-evoked potentials and motor-evoked potentials. Use of intraoperative SSEP (somatosensory evoked potential) or DSEP (dermatomal sensory evoked potential) monitoring is recommended as an adjunct in those circumstances during instrumented lumbar spinal fusion procedures in which the surgeon desires immediate intraoperative information regarding the potential of a neurological injury.
The occurrence of a postoperative neurological deficit is highly correlated with intraoperative changes in these monitoring modalities. An abnormal SSEP or DSEP during surgery, however, often does not correlate with a postoperative neurological injury because of a high false-positive rate. Use of intraoperative evoked EMG (electromyography) recordings is recommended in those circumstances in which the operating surgeon wishes to confirm the lack of a neurological injury during pedicle screw placement. A normal evoked EMG response is highly predictive of the lack of a neurological injury. An abnormal EMG response during the surgical procedure may or may not be associated with a clinically significant injury. (Resnick, 2005)
Although high-quality evidence supporting the use of monitoring in cervical, thoracic, and lumbar spinal surgeries is lacking, intraoperative neurophysiological monitoring during spine surgery is currently accepted as standard practice for many procedures and should be used at the discretion of the surgeon to improve outcomes of spinal surgery. (Gonzalez, 2009) Intraoperative monitoring of somatosensory evoked potentials and transcranial electrical motor evoked potentials in procedures that involve the spinal cord itself can predict adverse surgical outcomes in complex cases. All studies consistently showed that all occurrences of paraparesis, paraplegia, and quadriplegia were in patients who showed changes in their evoked potentials during surgery, whereas patients with no changes in evoked potentials had none of these adverse outcomes. However, in the majority of routine orthopedic spine procedures (mostly laminectomy, discectomy, or spinal fusion surgeries, procedures that do not actually involve the spinal cord itself but are very close to the spinal cord), the use of monitoring should be at the discretion of the surgeon. (Nuwer, 2012)
Remote monitoring: The monitoring physician should be present in the operating room or have access to neurophysiologic intraoperative monitoring data in real-time from a remote location and be in communication with the staff in the operating room. There are many methods of remote monitoring, however any method used must conform to local and national protected health information guidelines. According to Sentient (Baltimore, Maryland), one of the first providers of remote real-time intraoperative neurophysiological monitoring to augment local monitoring, this monitoring can reduce the risk of adverse neurological outcomes for patients undergoing spine or brain surgeries. (Emerson, 2008) (Edmonds, 2011) (Razumovsky, 2013)
The ODG provides the following for preoperative lab testing:
Recommended as indicated below. Preoperative additional tests are excessively ordered, even for young patients with low surgical risk, with little or no interference in perioperative management.
Criteria for Preoperative lab testing:
- Preoperative urinalysis is recommended for patients undergoing invasive urologic procedures and those undergoing implantation of foreign material.
- Electrolyte and creatinine testing should be performed in patients with underlying chronic disease and those taking medications that predispose them to electrolyte abnormalities or renal failure.
- Random glucose testing should be performed in patients at high risk of undiagnosed diabetes mellitus.
- In patients with diagnosed diabetes, A1C testing is recommended only if the result would change perioperative management.
- A complete blood count is indicated for patients with diseases that increase the risk of anemia or patients in whom significant perioperative blood loss is anticipated.
- Coagulation studies are reserved for patients with a history of bleeding or medical conditions that predispose them to bleeding, and for those taking anticoagulants.
Laboratory tests, besides generating high and unnecessary costs, are not good standardized screening instruments for diseases. The decision to order preoperative tests should be guided by the patient's clinical history, comorbidities, and physical examination findings. Preoperative routine tests are appropriate if patients with abnormal tests will have a preoperative modified approach (i.e., new tests ordered, referral to a specialist or surgery postponement). Testing should generally be done to confirm a clinical impression, and tests should affect the course of treatment. (Feely, 2013) (Sousa, 2013)
The ODG provides the following for preoperative general testing:
Preoperative testing (e.g., chest radiography, electrocardiography, laboratory testing, urinalysis) is often performed before surgical procedures. These investigations can be helpful to stratify risk, direct anesthetic choices, and guide postoperative management, but often are obtained because of protocol rather than medical necessity. The decision to order preoperative tests should be guided by the patient's clinical history, comorbidities, and physical examination findings. Patients with signs or symptoms of active cardiovascular disease should be evaluated with appropriate testing, regardless of their preoperative status. Electrocardiography is recommended for patients undergoing high-risk surgery and those undergoing intermediate-risk surgery who have additional risk factors. Patients undergoing low-risk surgery do not require electrocardiography. Chest radiography is reasonable for patients at risk of postoperative pulmonary complications if the results would change perioperative management. Patients in their usual state of health who are undergoing cataract surgery do not require preoperative testing. (Feely, 2013)
Routine preoperative tests are defined as those done in the absence of any specific clinical indication or purpose and typically include a panel of blood tests, urine tests, chest radiography, and an electrocardiogram (ECG). These tests are performed to find latent abnormalities, such as anemia or silent heart disease, that could impact how, when, or whether the planned surgical procedure and concomitant anesthesia are performed. It is unclear whether the benefits accrued from responses to true-positive tests outweigh the harms of false-positive preoperative tests and, if there is a net benefit, how this benefit compares to the resource utilization required for testing. An alternative to routine preoperative testing for the purpose of determining fitness for anesthesia and identifying patients at high risk of postoperative complications may be to conduct a history and physical examination, with selective testing based on the clinician's findings. However, the relative effect on patient and surgical outcomes, as well as resource utilization, of these two approaches is unknown. (AHRQ, 2013) The latest AHRQ comparative effectiveness research on the benefits and harms of routine preoperative testing, concludes that, except for cataract surgery, there is insufficient evidence comparing routine and per-protocol testing. (AHRQ, 2014)
The ODG provides the following for a surgical assistant:
Recommended as an option in more complex surgeries as identified below. An assistant surgeon actively assists the physician performing a surgical procedure. Reimbursement for assistant surgeon services, when reported by the same individual physician or other health care professional, is based on whether the assistant surgeon is a physician or another health care professional acting as the surgical assistant. Only one assistant surgeon for each procedure is a reimbursable service, without exceptions for teaching hospitals or hospital bylaws. The following low back surgical procedure CPT codes are eligible for a surgical assistant: 20930; 20931; 20936; 20937; 20938; 22224; 22226; 22548; 22558; 22585; 22612; 22614; 22630; 22632; 22830; 22840; 22841; 22842; 22843; 22844; 22845; 22846; 22847; 22849; 22850; 22851; 22852; 22855; 63005; 63011; 63012; 63017; 63030; 63035; 63042; 63044; 63047; 63048; 63056; 63057; 63170; 63185; 63190; 63200; 63267; 63268; 63272; 63273; and 69990. (CMS, 2014)
The ODG provides the following for a post-operative back brace:
Under study, but given the lack of evidence supporting the use of these devices, a standard brace would be preferred over a custom post-op brace, if any, depending on the experience and expertise of the treating physician.
There is conflicting evidence, so case by case recommendations are necessary (few studies though lack of harm and standard of care). There is no scientific information on the benefit of bracing for improving fusion rates or clinical outcomes following instrumented lumbar fusion for degenerative disease. Although there is a lack of data on outcomes, there may be a tradition in spine surgery of using a brace post-fusion, but this tradition may be based on logic that antedated internal fixation, which now makes the use of a brace questionable. For long bone fractures, prolonged immobilization may result in debilitation and stiffness; if the same principles apply to uncomplicated spinal fusion with instrumentation, it may be that the immobilization is actually harmful. Mobilization after instrumented fusion is logically better for health of adjacent segments, and routine use of back braces is harmful to this principle. There may be special circumstances (multilevel cervical fusion, thoracolumbar unstable fusion, non-instrumented fusion, mid-lumbar fractures, etc.) in which some external immobilization might be desirable. (Resnick, 2005)
Claimant/Petitioner testified concerning the mechanism of injury and his course of treatment; however, a qualified expert medical opinion with reference to evidence-based medicine was necessary for Claimant/Petitioner to meet his burden of proof on this matter and such evidence-based medical evidence was lacking in this case. As such, insufficient evidence-based medical evidence existed to explain that the requested surgery was health care reasonably required for the compensable injury. Therefore, the preponderance of the evidence is not contrary to the decision of the IRO that Claimant/Petitioner is not entitled to the requested treatment.
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:
- Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
- On (Date of Injury), Claimant was the employee of (Employer), Employer.
- On (Date of Injury), Employer provided workers’ compensation insurance through Hartford Casualty Insurance Company, Insurance Carrier.
- On (Date of Injury), Claimant sustained a compensable injury.
- Insurance Carrier/Respondent delivered to Claimant/Petitioner a single document stating the true corporate name of Insurance Carrier/Respondent, and the name and street address of Insurance Carrier/Respondent’s registered agent, which document was admitted into evidence as Administrative Law Judge’s Exhibit Number 2.
- The IRO decision is dated September 16, 2019.
- Claimant/Petitioner’s appeal of the IRO decision was filed on October 21, 2019, not within the 20-day deadline contained in 28 TAC §133.308(s)(1)(A).
- The microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant are 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) Field Office.
- The preponderance of the evidence is not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant.
- Claimant/Petitioner did not timely appeal the IRO decision.
The preponderance of the evidence is not contrary to the decision of the IRO that the Claimant/Petitioner is not entitled to microdiscectomy at left L5-S1, neuromonitoring, preoperative laboratory testing, preoperative general testing, back brace, and surgical assistant. Claimant/Petitioner did not timely appeal the IRO decision.
Insurance Carrier/Respondent is not liable for the benefits at issue in this hearing. Claimant/Petitioner 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 HARTFORD CASUALTY 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 75201-3136
Signed this 30th day of December, 2019.
Administrative Law Judge