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DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation (DWC) adopted thereunder. For the reasons discussed herein, the Administrative Law Judge (ALJ) determines that:

Claimant is not entitled to the requested L4-L5 anterior lumbar interbody fusion, L4-L5 laminectomy, L4-L5 posterior fusion (cpt 22558, 22845 22612, 22840, 63047, 20930), and inpatient stay for 4 days.

STATEMENT OF THE CASE

A contested case hearing was held on January 16, 2020, with the record closing on February 6, 2020, to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to L4-L5 anterior lumbar interbody fusion, L4-L5 laminectomy, L4-L5 posterior fusion (cpt 22558, 22845 22612, 22840, 63047, 20930), and inpatient stay for 4 days for the compensable injury of (Date of Injury)?

The record was held open to obtain substitute exhibits for unreadable exhibits and to obtain a stipulation. The records were received and added to Carrier’s Exhibit CR-3 as pages 55 through 79. The record was closed on February 6, 2020.

PARTIES PRESENT

Petitioner/Claimant (Claimant) was present, and represented by LT, attorney.

Respondent/Carrier (Carrier) appeared and was represented by BJ, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For:  DH.

For Carrier:  None.

The following exhibits were admitted into evidence:

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

Claimant’s Exhibits: C-1 through C-10.

Carrier’s Exhibits: CR-A through CR-J.

DISCUSSION

Claimant testified that he was employed as a plumber by Employer. According to Claimant he sustained a compensable injury on (Date of Injury), when he was lifting a hot water tank upstairs for an installation. The parties stipulated that Claimant sustained a compensable injury on (Date of Injury), and that the compensable injury extends to and includes a lower back strain, radiculopathy, lumbar region intervertebral disc displacement, and L4-L5 disc herniation. Claimant received care at (Provider) and his treating doctor was SB. Dr. B made several referrals. Dr. NS told Claimant he needed surgery and a surgery for a micro discectomy was approved, but Claimant sought a second opinion.

Dr. KK, a referral doctor recommended a different surgery and requested prior approval of L4-L5 anterior lumbar interbody fusion, L4-L5 laminectomy, L4-L5 posterior fusion (cpt 22558, 22845 22612, 22840, 63047, 20930), and inpatient stay for 4 days. Claimant received notification of adverse determination for this procedure dated April 5, 2019. It was noted that in this case an MRI dated March 12, 2019, showed there was mild disc space narrowing, fluid in the facet joints, a stable circumferential disc bulge, a stable central annular tear and a stable superimposed 5 by 12 by 14 mm central disc extrusion (herniation). It was stated that the presented objective findings were limited in order to necessitate the need for surgery. It was also noted that there was no documentation of the presence or absence of identified psychological barriers known to preclude post-operative recovery.

Claimant also received a Notice of Reconsideration Adverse Determination from Coventry Health Care Workers’ Compensation, Inc. dated May 23, 2019, denying the request for L4-L5 anterior lumbar interbody fusion; L4-L5 laminectomy, L4-L5 posterior fusion and inpatient stay for 4 days. It stated that the proposed treatment does not meet medical necessity guidelines. It also stated that there was no evidence of any significant spondylolisthesis or motion segment instability at L4-L5 that would support proceeding with lumbar spinal fusion in addition to decompression. It was also noted that ODG does not recommend lumbar fusion to address disc herniation or radiculopathy only.

Upon appeal of the adverse determination the Department of Insurance assigned Medical Evaluators of Texas ASO, LLC as the Independent Review Organization (IRO). The IRO undertook the review. The case was reviewed by a physician who is board certified in Orthopedic Surgery and currently licensed and practicing in Texas. Notice of the IRO decision was sent to all of the parties on July 3, 2019. The reviewing physician is a board certified orthopedic surgeon. The IRO’s reviewing physician upheld the prior adverse determination.

The IRO noted that according to Official Disability Guidelines (ODG) the criteria for lumbar spinal fusion require evidence of spondylolisthesis with at least instability, and or symptomatic radiculopathy and/or symptomatic spinal stenosis. The reviewer stated that in this case documentation revealed that Claimant’s imaging studies showed evidence of L4-5 degenerative disc disease, disc herniation and stenosis, but no evidence of spondylolisthesis or instability.

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."

The ODG for the requested procedures indicates the following:

Patient Selection Criteria for Lumbar Spinal Fusion:

  1. Recommended as an option for the following conditions with ongoing symptoms, corroborating physical findings and imaging, and after failure of non-operative treatment (unless contraindicated, e.g., acute traumatic unstable fracture, dislocation, spinal cord injury) subject to criteria below:
    1. Spondylolisthesis (isthmic or degenerative) with at least one of these:
      1. instability, and/or
      2. symptomatic radiculopathy, and/or
      3. symptomatic spinal stenosis;
    2. Disc herniation with symptomatic radiculopathy undergoing a third decompression at the same level;
    3. Revision of pseudoarthrosis (single revision attempt);
    4. Unstable fracture;
    5. Dislocation;
    6. Acute spinal cord injury (SCI) with post-traumatic instability;
    7. Spinal infections with resultant instability;
    8. Scoliosis with progressive pain, cardiopulmonary or neurologic symptoms, and structural deformity;
    9. Scheuermann's kyphosis;
    10. Tumors.
  2. Not recommended in workers’ compensation patients for the following conditions:
    1. Degenerative disc disease (DDD);
    2. Disc herniation;
    3. Spinal stenosis without degenerative spondylolisthesis or instability;
    4. Nonspecific low back pain.
  3. Instability criteria: Segmental Instability (objectively demonstrable) - Excessive motion, as in isthmic or degenerative spondylolisthesis, surgically induced segmental instability and mechanical intervertebral collapse of the motion segment and advanced degenerative changes after surgical discectomy, with relative angular motion greater than 15 degrees L1-2 through L3-4, 20 degrees L4-5, 25 degrees L5-S1. Spinal instability criteria include lumbar inter-segmental translational movement of more than 4.5 mm. (Andersson, 2000) (Luers, 2007) (Rondinelli, 2008)
  4. After failure of two discectomies on the same disc [(A)(2) above], fusion may be an option at the time of the third discectomy, which should also meet the ODG criteria. (See ODG Indications for Surgery™ -- Discectomy.)
  5. Revision Surgery for failed previous fusion at the same disc level [(A)(3) above] if there are ongoing symptoms and functional limitations that have not responded to non-operative care; there is imaging confirmation of pseudoarthrosis and/or hardware breakage/malposition; and significant functional gains are reasonably expected. Revision surgery for purposes of pain relief must be approached with extreme caution due to the less than 50% success rate reported in medical literature. Workers compensation and opioid use may be associated with failure to achieve minimum clinically important difference after revision for pseudoarthrosis (Djurasovic, 2011) There is low probability of significant clinical improvement from a second revision at the same fusion level(s), and therefore multiple revision surgeries at the same level(s) are not supported.
  6. Pre-operative clinical surgical indications for spinal fusion should include all of the following:
    1. All physical medicine and manual therapy interventions are completed with documentation of reasonable patient participation with rehabilitation efforts including skilled therapy visits, and performance of home exercise program during and after formal therapy. Physical medicine and manual therapy interventions should include cognitive behavioral advice (e.g., ordinary activities are not harmful to the back, patients should remain active, etc.);
    2. X-rays demonstrating spinal instability and/or myelogram, CT-myelogram, or MRI demonstrating nerve root impingement correlated with symptoms and exam findings;
    3. Spine fusion to be performed at one or two levels;
    4. Psychosocial screen with confounding issues addressed; the evaluating mental health professional should document the presence and/or absence of identified psychological barriers that are known to preclude post-operative recovery;
    5. For any potential fusion surgery, it is recommended that the injured worker refrain from smoking for at least six weeks prior to surgery and during the period of fusion healing; (Colorado, 2001) (BlueCross BlueShield, 2002)
    6. There should be documentation that the surgeon has discussed potential alternatives, benefits and risks of fusion with the patient;
    7. For average hospital LOS after criteria are met, see Hospital length of stay (LOS).

ODG hospital length of stay (LOS) guidelines:

Discectomy (ICD 80.51 - Excision of intervertebral disc)

Actual data -- median 1 day; mean 2.1 days (± 0.0); discharges 109,057; charges (mean) $26,219

Best practice target (no complications) -- Outpatient

Laminectomy (ICD 03.09 - Laminectomy/laminotomy for decompression of spinal nerve root)

Actual data -- median 2 days; mean 3.5 days (±0.1); discharges 100,600; charges (mean) $34,978

Best practice target (no complications) -- 1 day

Note: Approximately 6% of discharges paid by workers’ compensation.

Lumbar Fusion, posterior (ICD 81.08 - Lumbar and lumbosacral fusion, posterior technique)

Actual data -- median 3 days; mean 3.9 days (±0.1); discharges 161,761; charges (mean) $86,900

Best practice target (no complications) -- 3 days

Note: Approximately 15% of discharges paid by workers’ compensation.

Lumbar Fusion, anterior (ICD 81.06 - Lumbar and lumbosacral fusion, anterior technique)

Actual data -- median 3 days; mean 4.2 days (±0.2); discharges 33,521; charges (mean) $110,156

Best practice target (no complications) -- 3 days

The IRO reviewer wrote that according to ODG, the criteria for lumbar spinal fusion requires evidence of spondylolisthesis with at least instability, and/or symptomatic radiculopathy, and /or symptomatic spinal stenosis. In this case the documentation revealed that Claimant’s imaging studies showed evidence of L4-L5 degenerative disc disease (DDD) disc herniation and stenosis, but no evidence of spondylolisthesis or instability. Further according to ODG, lumbar spinal fusion is not recommended for degenerative disc disease, disc herniation, spinal stenosis without degenerative spondylolisthesis, or instability and nonspecific low back pain. The review noted the treating provider did not document any explanation for the need of fusion in documentation submitted for review. The review concluded that since the lumbar surgery is not indicated, the four day inpatient stay is also not medically necessary. The IRO decision was further supported by a written opinion by BS MD.

Claimant testified that Dr. K did not cooperate in helping him with his appeal. He testified that Dr. K only printed a one page document. Claimant placed in evidence a one page document dated December 4, 2019 from (Provider). It is not signed by Dr. K and does not offer any opinion based on evidence based medicine that is contrary to the decision of the IRO. For the most part it is a recitation of the MRI findings and does not opine that the requested procedures are medically necessary or appropriate. Claimant admitted in argument that he did not have much in the way of evidence that is contrary to the IRO decision. The other medical records in evidence are not persuasive and do not opine that the requested procedure is medically necessary, is health care reasonable required or otherwise contradict the IRO decision.

Based on the evidence presented, Claimant did not meet his burden of proof to overcome the decision of the IRO by a preponderance of evidence-based medical evidence. Claimant did not present persuasive evidence-based medical evidence to support his position. As the preponderance of the evidence is found not to be contrary to the decision of the IRO that the L4-L5 anterior lumbar interbody fusion, L4-L5 laminectomy, L4-L5 posterior fusion (cpt 22558, 22845 22612, 22840, 63047, 20930), and inpatient stay for 4 days are not health care reasonably required for the compensable injury of (Date of Injury), Claimant is held not to be entitled to those procedures.

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:

A. The Texas Department of Insurance, Division of Workers’ Compensation has jurisdiction to hear 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 (Employer), Employer.

D. On (Date of Injury), Employer provided workers’ compensation insurance coverage with Texas Mutual Insurance Company, Carrier.

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

F. Claimant requested preauthorization for L4-L5 anterior lumbar interbody fusion, L4-L5 laminectomy, L4-L5 posterior fusion (cpt 22558, 22845 22612, 22840, 63047, 20930), and inpatient stay for 4 days.

G. The Independent Review Organization upheld Carrier’s denial of preauthorization for L4-L5 anterior lumbar interbody fusion, L4-L5 laminectomy, L4-L5 posterior fusion (cpt 22558, 22845 22612, 22840, 63047, 20930), and inpatient stay for 4 days.

H. The compensable injury of (Date of Injury), extends to and includes a lower back strain, radiculopathy, lumbar region intervertebral disc displacement, and L4-L5 disc herniation.

I. The Texas Department of Insurance appointed Medical Evaluators of Texas ASO, LLC as the Independent Review Organization.

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. The preponderance of the evidence is not contrary to the decision of the Independent Review Organization that Claimant is not entitled to the requested L4-L5 anterior lumbar interbody fusion, L4-L5 laminectomy, L4-L5 posterior fusion (cpt 22558, 22845 22612, 22840, 63047, 20930), and inpatient stay for 4 days.

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. Claimant is not entitled to the requested L4-L5 anterior lumbar interbody fusion, L4-L5 laminectomy, L4-L5 posterior fusion (cpt 22558, 22845 22612, 22840, 63047, 20930), and inpatient stay for 4 days.

DECISION

Claimant is not entitled to the requested L4-L5 anterior lumbar interbody fusion, L4-L5 laminectomy, L4-L5 posterior fusion (cpt 22558, 22845 22612, 22840, 63047, 20930), and inpatient stay for 4 days.

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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is:

RICHARD J. GERGASKO
TEXAS MUTUAL INSURANCE COMPANY
2200 ALDRICH STREET
AUSTIN, TEXAS 78723

Signed this 10th day of February, 2020.

Christopher M. Maisel
Administrative Law Judge

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder. For the reasons discussed herein, the Hearing Officer determines that lumbar epidural steroid injection, L4-5 on the right X1 is not health care reasonably required for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

A contested case hearing was held on August 8, 2017 to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to lumbar epidural steroid injection, L4-5 on the right X1 for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Claimant appeared and was assisted by BO, ombudsman. Carrier appeared and was represented by RJ, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For the Claimant: TN.

For Carrier None.

The following exhibits were admitted into evidence:

Hearing officer’s Exhibits HO-1 and Ho-2.

Claimant’s Exhibits C-1 through C-3.

Carrier’s Exhibits CR-A through CR-H.

DISCUSSION

Claimant sustained a compensable injury to her lumbar and thoracic spine when she slipped and fell at work, landing on her buttocks. When conservative treatment failed to relieve her pain, she underwent surgery for T-12 fracture which consisted of a T11-T12 fusion. Claimant’s request for lumbar epidural steroid injection (ESI), through her treating doctor, AT, MD was denied in June 2014. Claimant testified that she has never had the injection, however the medical records in evidence show that she has been treated with epidural injections and trigger point injections in the past.

Claimant testified that the pain has gone on for many years and has not improved with any of the treatment options. Claimant’s current treatment plan includes medications and the appeal for the lumbar epidural steroid injection. Claimant’s request has been denied multiple times, most recently on March 15, 2017 due to no correlation of symptoms, physical exam findings, and diagnostic studies to support radiculopathy. Claimant disagrees with the IRO decision that upheld Carrier's denial of the lumbar epidural steroid injection, L4-5 on the right X1. The IRO reviewer, who is board certified in physical medicine and rehabilitation as well as in pain management and in electrodiagnostic medicine, relied on the Official Disability Guidelines (ODG), the AMA Guides, and on the reviewer's medical judgment, clinical experience and expertise in accordance with accepted medical standards. The reviewer wrote that medical records on Claimant did not document radiculopathy or radicular pain in dermatomal distribution with corroborative findings of radiculopathy.

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 lumbar epidural steroid injection, the ODG lists the following criteria:

Recommended as an option for treatment of radicular pain (defined as pain in dermatomal distribution with corroborative findings of radiculopathy). See specific criteria for use below. In a recent Cochrane review, there was one study that reported improvement in pain and function at four weeks and also one year in individuals with chronic neck pain with radiation. (Peloso-Cochrane, 2006) (Peloso, 2005) Other reviews have reported moderate short-term and long-term evidence of success in managing cervical radiculopathy with interlaminar ESIs. (Stav, 1993) (Castagnera, 1994) Some have also reported moderate evidence of management of cervical nerve root pain using a transforaminal approach. (Bush, 1996) (Cyteval, 2004) A recent retrospective review of interlaminar cervical ESIs found that approximately two-thirds of patients with symptomatic cervical radiculopathy from disc herniation were able to avoid surgery for up to 1 year with treatment. Success rate was improved with earlier injection (< 100 days from diagnosis). (Lin, 2006) There have been recent case reports of cerebellar infarct and brainstem herniation as well as spinal cord infarction after cervical transforaminal injection. (Beckman, 2006) (Ludwig, 2005) Quadriparesis with a cervical ESI at C6-7 has also been noted (Bose, 2005) and the American Society of Anesthesiologists Closed Claims Project database revealed 9 deaths or cases of brain injury after cervical ESI (1970-1999). (Fitzgibbon, 2004) These reports were in contrast to a retrospective review of 1,036 injections that showed that there were no catastrophic complications with the procedure. (Ma, 2005) The American Academy of Neurology recently concluded that epidural steroid injections may lead to an improvement in radicular lumbosacral pain between 2 and 6 weeks following the injection, but they do not affect impairment of function or the need for surgery and do not provide long-term pain relief beyond 3 months, and there is insufficient evidence to make any recommendation for the use of epidural steroid injections to treat radicular cervical pain. (Armon, 2007) There is evidence for short-term symptomatic improvement of radicular symptoms with epidural or selective root injections with corticosteroids, but these treatments did not appear to decrease the rate of open surgery. (Haldeman, 2008) (Benyamin, 2009) See the Low Back Chapter for more information and references.

Criteria for the use of Epidural steroid injections, therapeutic: The purpose of ESI is to reduce pain and inflammation, thereby facilitating progress in more active treatment programs, and avoiding surgery, but this treatment alone offers no significant long-term functional benefit. (1) Radiculopathy must be documented by physical examination and corroborated by imaging studies and/or electrodiagnostic testing. (2) Initially unresponsive to conservative treatment (exercises, physical methods, NSAIDs and muscle relaxants). (3) Injections should be performed using fluoroscopy (live x-ray) for guidance (4) If used for diagnostic purposes, a maximum of two injections should be performed. A second block is not recommended if there is inadequate response to the first block. Diagnostic blocks should be at an interval of at least one to two weeks between injections. (5) No more than two nerve root levels should be injected using transforaminal blocks. (6) No more than one interlaminar level should be injected at one session. (7) In the therapeutic phase, repeat blocks should only be offered if there is at least 50% pain relief for six to eight weeks, with a general recommendation of no more than 4 blocks per region per year. (8) Repeat injections should be based on continued objective documented pain and function response. (9) Current research does not support a “series-of-three” injections in either the diagnostic or therapeutic phase. We recommend no more than 2 ESI injections. (10) It is currently not recommended to perform epidural blocks on the same day of treatment as facet blocks or stellate ganglion blocks or sympathetic blocks or trigger point injections as this may lead to improper diagnosis or unnecessary treatment. (11) Cervical and lumbar epidural steroid injection should not be performed on the same day.

Criteria for the use of Epidural steroid injections, diagnostic: To determine the level of radicular pain, in cases where diagnostic imaging is ambiguous, including the examples below:

(1) To help to evaluate a pain generator when physical signs and symptoms differ from that found on imaging studies; (2) To help to determine pain generators when there is evidence of multi-level nerve root compression; (3) To help to determine pain generators when clinical findings are suggestive of radiculopathy (e.g. dermatomal distribution) but imaging studies are inconclusive; (4) To help to identify the origin of pain in patients who have had previous spinal surgery.

Board certified anesthesiologist, NM, MD, performed a peer review dated February 15, 2017. He reviewed a lumbar spine MRI report dated January 9, 2017, Appeal Review report dated January 10, 2017, a Pre-Authorization Review report dated December 20, 2016, and pre-authorization and office visit notes. Dr. M opined that the request for lumbar ESI at L4-5 on the right X1 is not medically necessary because there is no documentation of radiculopathy on physical examination as evidenced by sensory loss, strength, weakness corroborating with the level of the requested injection. He further opined that the ODG criteria for ESI was not satisfied, therefore, the request is not medically necessary.

RK, MD, also prepared a peer review report dated March 10, 2017, in which he opined that the request for lumbar ESI at L4-5 is not substantiated as medically necessary. Dr. K further opined that the ODG recommends that for a patient to be a candidate for such treatment, there should be correlation of symptoms, physical exam findings and diagnostic studies, which correlation does not exist at this time. Dr. K noted that “the same guidelines recommend epidural injections early in the course of an injury in order to facilitate initial functional restoration. It is not clear that there is any meaningful benefit from ESI in a chronic phase, such as currently.”

After a careful review of all of 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. The Texas Department of Insurance, Division of Workers’ Compensation has jurisdiction in this matter.
    2. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
    3. On (Date of Injury), Claimant was the employee of (Employer), Employer.
    4. Claimant sustained a compensable injury on (Date of Injury).
    5. The Independent Review Organization determined that claimant should not have lumbar epidural steroid injection, L4-5 on the right X1.
  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 Hearing Officer’s Exhibit Number 2.
  3. Lumbar epidural steroid injection, L4-5 on the right X1 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 lumbar epidural steroid injection, L4-5 on the right X1 is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Lumbar epidural steroid injection, L4-5 on the right X1 is not health care reasonably required 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 WAUSAU UNDERWRITERS INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701

Signed this 18th day of August, 2017.

FRANCISCA OKONKWO
Hearing Officer

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:

Direct Repair:

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

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 Hearing Officer determines that Claimant is not entitled to Tizanidine cap 4 mg 30 day supply quantity 30 with one refill or Hydrocodone APAP tab 10-325 30 day supply quantity 90 for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On February 23, 2017, Carol A. Fougerat, a Division Hearing Officer, 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 the Claimant is not entitled to Tizanidine cap 4 mg 30 day supply quantity 30 with one refill and Hydrocodone APAP tab 10-325 30 day supply quantity 90 for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by MH, ombudsman. Respondent/Carrier appeared and was represented by MA, attorney. In attendance on behalf of the employer was TV.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: None

For Carrier: None

The following exhibits were admitted into evidence:

Hearing Officer’s Exhibits: HO-1 and HO-2

Claimant’s Exhibits: C-1 and C-2

Carrier’s Exhibits: CR-A through CR-C

DISCUSSION

Claimant sustained a compensable injury on (Date of Injury). As a result of this injury, Claimant has undergone multiple surgeries, physical therapy and pain management. Claimant’s treating doctor has recommended continued use of the prescriptions Tizanidine and Hydrocodone, which was denied by the Carrier and appealed to an IRO.

The IRO reviewer, identified as a medical doctor board certified in physical medicine and rehabilitation, upheld Carrier’s denial and determined that the requested prescriptions were not medically necessary. The IRO reviewer noted that the ongoing use of Tizanidine at 4 mg, muscle relaxants, are not recommended for routine or long-term use to address musculoskeletal pain. The IRO reviewer stated that the records did not demonstrate any recent injuries or any indication of recent flare-ups of musculoskeletal spasms or pain.

Regarding the use of Hydrocodone, the IRO reviewer referred to the recommendations in the Official Disability Guidelines (ODG), noting that the ODG does not recommend long-term use of narcotic medications for chronic musculoskeletal or neuropathic pain, as there is limited evidence in the literature demonstrating long-term function improvement with this class of medications. The IRO reviewer also noted that ODG recommends that records document the efficacy of short-acting narcotics to include pain relief and functional improvement, as well as demonstrate compliance through risk assessments and urine drug screens. The IRO concluded that, based on the records available for review, medical necessity for the prescriptions has not been established.

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."

ODG Criteria for Tizanidine and Hydrocodone:

Tizanidine (Zanaflex®, generic available) is a centrally acting alpha2-adrenergic agonist that is FDA approved for management of spasticity; unlabeled use for low back pain. (Malanga, 2008) Eight studies have demonstrated efficacy for low back pain. (Chou, 2007) One study (conducted only in females) demonstrated a significant decrease in pain associated with subacute and chronic myofascial pain syndrome and the authors recommended its use as a first-line option to treat myofascial pain. (Malanga, 2002) May also provide benefit as an adjunct treatment for fibromyalgia. (ICSI, 2007)

Side effects: somnolence, dizziness, dry mouth, hypotension, weakness, hepatotoxicity (LFTs should be monitored baseline, 1, 3, and 6 months). (See, 2008)

Dosing: 4 mg initial dose; titrate gradually by 2 – 4 mg every 6 – 8 hours until therapeutic effect with tolerable side-effects; maximum 36 mg per day. (See, 2008) Use with caution in renal impairment; should be avoided in hepatic impairment. Tizanidine use has been associated with hepatic aminotransaminase elevations that are usually asymptomatic and reversible with discontinuation. This medication is related to clonidine and should not be discontinued abruptly. Weaning should occur gradually, particularly in patients that have had prolonged use. (Zanaflex-FDA, 2008)

Benzodiazepines: Not recommended due to rapid development of tolerance and dependence. There appears to be little benefit for the use of this class of drugs over nonbenzodiazepines for the treatment of spasm. (See, 2008) See Benzodiazepines.

Claimant failed to offer evidence-based medical evidence contrary to the determination of the IRO or to support the necessity of the prescriptions. Based on the evidence presented, Claimant has not met the requirements in the ODG for the requested prescriptions and he failed to present evidence-based medical 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 Tizanidine cap 4 mg 30 day supply quantity 30 with one refill or Hydrocodone APAP tab 10-325 30 day supply quantity 90 for the compensable injury of (Date of Injury).

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:
    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 as a self-insurer.
    4. Claimant sustained a compensable injury on (Date of Injury).
    5. The IRO determined that the proposed Tizanidine cap 4 mg 30 day supply quantity 30 with one refill and Hydrocodone APAP tab 10-325 30 day supply quantity 90 were 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 Hearing Officer’s Exhibit Number 2.
  3. Claimant does not meet the recommendations of the ODG for the prescriptions Tizanidine and Hydrocodone.
  4. Tizanidine cap 4 mg 30 day supply quantity 30 with one refill and Hydrocodone APAP tab 10-325 30 day supply quantity 90 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 Tizanidine cap 4 mg 30 day supply quantity 30 with one refill and Hydrocodone APAP tab 10-325 30 day supply quantity 90 are not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Claimant is not entitled to Tizanidine cap 4 mg 30 day supply quantity 30 with one refill or Hydrocodone APAP tab 10-325 30 day supply quantity 90 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:

(NAME)

(STREET ADDRESS)

(CITY), TX (ZIPCODE)

Signed this 27th day of February, 2017.

Carol A. Fougerat
Hearing Officer

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder.

ISSUES

A contested case hearing was held on February 8, 2017 to decide the following disputed issue:

Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to right knee arthroscopy with partial lateral meniscectomy for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Claimant appeared and was assisted by CJ, ombudsman. Carrier appeared and was represented by TH, attorney.

BACKGROUND INFORMATION

Claimant sustained a compensable injury to his right knee on (Date of Injury) while unloading equipment from his car. He was assessed with a complex tear of the lateral meniscus and underwent conservative care for his right knee injury. On April 28, 2016, after conservative care failed, Claimant underwent right knee arthroscopy and partial lateral meniscectomy, performed by DM, MD, an orthopedic surgeon. However Claimant continues to complain of severe pain and swelling in his right thigh, right knee, with frequent and painful catching and locking episodes.

On August 4, 2016, Dr. M submitted an Authorization Request for Surgery. The requested procedure was a repeat right knee arthroscopy with partial lateral meniscectomy on an out-patient basis. Pre-authorization was denied by Carrier. On August 9, 2016, GG, MD, performed a utilization review and denied the request for one surgical assistant and the request for right knee arthroscopy with partial lateral meniscectomy. On August 22, 2016, MG, MD, the IRO doctor, an orthopedic physician, upheld the denial for the requested treatment. Claimant appealed the IRO’s decision to a Medical Contested Case Hearing.

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 a meniscectomy, the ODG lists the following criteria:

ODG Indications for Surgery -- Meniscectomy:

Criteria for meniscectomy or meniscus repair (Suggest 2 symptoms and 2 signs to avoid scopes with lower yield, e.g. pain without other symptoms, posterior joint line tenderness that could just signify arthritis, MRI with degenerative tear that is often false positive):

  1. Conservative Care: (Not required for locked/blocked knee.) Physical therapy. OR Medication. OR Activity modification. PLUS
  2. Subjective Clinical Findings (at least two): Joint pain. OR Swelling. OR Feeling of give way. OR Locking, clicking, or popping. PLUS
  3. Objective Clinical Findings (at least two): Positive McMurray's sign. OR Joint line tenderness. OR Effusion. OR Limited range of motion. OR Locking, clicking, or popping. OR Crepitus. PLUS
  4. Imaging Clinical Findings: (Not required for locked/blocked knee.) Meniscal tear on MRI.

(Washington, 2003)

For average hospital LOS if criteria are met, see Hospital length of stay (LOS).

With regard to diagnostic arthroscopy, the ODG lists the following criteria:

ODG Indications for Surgery -- Diagnostic arthroscopy:

Criteria for diagnostic arthroscopy:

  1. Conservative Care: Medications. OR Physical therapy. PLUS
  2. Subjective Clinical Findings: Pain and functional limitations continue despite conservative care. PLUS
  3. Imaging Clinical Findings: Imaging is inconclusive.

(Washington, 2003) (Lee, 2004)

For average hospital LOS if criteria are met, see Hospital length of stay (LOS).

On July 8, 2016, a right knee MRI without contrast was performed at One Step Diagnostic. The study was interpreted by RO, MD. The study revealed: post-surgical repair of the anterior horn of the lateral meniscus; grade II signal in the posterior horn of the medial meniscus without MRI criteria for a grade III tear; persistent chondral fissure of the weight bearing articular surface of the lateral tibial plateau; lateral tilt of the patella with grade I chondromalacia patella and moderate effusion; effusion was improved in the interval; persistent Baker’s cyst.

In support of his position, Claimant contends that he has completed conservative care as required by the ODG and his initial arthroscopic surgery was unsuccessful in treating his ongoing symptoms, the cause of which is unclear based on the physical examinations and MRIs. He further contends that Dr. M has discussed the available options with him, one of which is surgery. Dr. M is of the opinion that a second arthroscopy might reveal the cause of his symptoms and decreased range of motion and may alleviate his pain. Claimant also points to the fact that the Division-appointed designated doctor, LB, DC, who examined him on December 23, 2016, certified that he had not reached MMI. Dr. B agreed with Dr. M’s theory that there may be a trapped collagen fragment that the MRI does not show, which may be causing the non-recovery. Both doctors opined that a second knee arthroscopy would rule this in or out.

On August 9, 2016, the IRO doctor, Dr. GG, performed the utilization review and denied the request for right knee arthroscopy with partial lateral meniscectomy. Dr. GG opined that:

The documented examination findings were not suggestive of meniscal tear to support the need for surgery as required by the ODG. Therefore, the medical necessity of the request has not been established. As the request for right knee arthroscopy with partial lateral meniscectomy has not been established, concurrent request for one surgical assistant is not warranted. Therefore the medical necessity of the request has not been established.

On August 22, 2016, Dr. MG performed a reconsideration review and upheld the denial with the following rationale: “The documented examination findings were not suggestive of meniscal tear to warrant right knee arthroscopy with partial lateral meniscectomy. As the request for surgery has not been established, the concurrent request for one surgical assistant is not warranted.”

Claimant underwent prior surgery but continues to be bothered by subjective complaints of pain. A post-surgical MRI did not reveal a discreet meniscal tear. There is no objective evidence to support the meniscal tear. All of the ODG requirements for meniscectomy are not met in this case. Specifically, the fourth criteria, evidence of a meniscal tear on the MRI, is not met. Since all of the ODG requirements for the requested procedure have not been met and since no other evidence-based medicine was put forth in support of the necessity of the proposed procedure, 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. The Texas Department of Insurance, Division of Workers’ Compensation has jurisdiction in this matter.
    2. Venue is proper in the Houston West Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
    3. On (Date of Injury), Claimant was the employee of Unifirst Corporation, Employer.
    4. Claimant sustained a compensable injury on (Date of Injury).
    5. The Independent Review Organization determined that claimant should not have right knee arthroscopy with partial lateral meniscectomy
  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 Hearing Officer’s Exhibit Number 2.
  3. Right knee arthroscopy and partial lateral meniscectomy 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 Houston West Field Office.
  3. The preponderance of the evidence is not contrary to the decision of the IRO that right knee arthroscopy with partial lateral meniscectomy is not health care reasonably required for the compensable injury of (Date of Injury).

DECISION

Right knee arthroscopy with partial lateral meniscectomy is not health care reasonably required 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 NEW HAMPSHIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218

Signed this 16th day of February, 2017.

FRANCISCA OKONKWO
Hearing Officer

DECISION AND ORDER

This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder. For the reasons discussed herein, the Hearing Officer determines that Claimant is not entitled to psychotherapy for PTSD for the compensable injury of (Date of Injury).

ISSUES

A contested case hearing was held on January 18, 2017, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant is not entitled to psychotherapy for PTSD for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was assisted by KP, ombudsman. Respondent/Carrier appeared and was represented by RG, attorney.

BACKGROUND INFORMATION

Claimant sustained a compensable injury on (Date of Injury) from a motor vehicle accident. Claimant has received 24 sessions of psychotherapy. Notations from the Utilization Review reports noted that on July 10, 2014, Claimant’s depression had worsened and he wanted to restart counseling. NP, M.D., requested pre-authorization for an additional sessions of psychotherapy for post-traumatic stress disorder (PTSD). The IRO decision upheld the previous denials, and Claimant appealed.

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 (t), "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 guidelines concerning cognitive therapy in connection with depression:

ODG Mental Illness and Stress – Cognitive therapy for depression

Recommended. Cognitive behavior therapy for depression is recommended based on meta-analysis that compare its use with pharmaceuticals. Cognitvie behavior therapy fared as well as antidepressant medication with severely depressed outpatients in four major comparisons. Effects may be longer lasting (80% relapse rate with antidepressants versus 25% with psychotherapy). (Paykel, 2006) (Bockting, 2006) (DeRubeis, 1999) (Goldapple, 2004). It also fared well in a meta-analysis comparing 78 clinical trials from 1977-1996. (Gloaguen, 1998) In another study, it was found that combined therapy (antidepressant plus psychotherapy) was found to be more effective than psychotherapy alone. (Thase, 1997) A recent high quality study concluded that a substantial number of adequately treated patients did not respond to antidepressant therapy. (Corey-Lisle, 2004) A recent meta-analysis concluded that psychological treatment combined with antidepressant therapy is associated with a higher improvement rate than drug treatment alone. In longer therapies, the addition of psychotherapy helps to keep patients in treatment. (Pampallona, 2004) For panic disorder, cognitive behavior therapy is more effective and more cost-effective than medication. (Royal Australian, 2003) The gold standard for the evidence-based treatment of MDD is a combination of medication (antidepressants) and psychotherapy. The primary forms of psychotherapy that have been most studied through research are: Cognitive Behavioral Therapy and Interpersonal Therapy. (Warren, 2005) Delivering cognitive behavioral therapy (CBT) by telephone is as effective as delivering it face-to-face in the short term, and telephone therapy is safe and has a higher patient retention rate. The attrition rate from psychotherapy can exceed 50% due to time constraints, lack of available and accessible services, transportation problems, and cost. Significantly fewer participants receiving telephone CBT discontinued their therapy than did those receiving face-to-face CBT. Both treatment groups showed significant improvement in depression, and there were no significant treatment differences when measured at postteramtnet between telephone and face-to-face CBT. However, face-to-face CBT was signficiantly superior to telephone CBT during the follow-up period. The RCT used 18 sessions of either telephone CBT or face-to-face CBT. (Mohr, 2012) Maintenance CBT to prevent recurrent depression is most effective in patients at highest risk for relapse, defined as those with 5 or more previous depressive episodes. For individuals at more moderate risk for recurrence(fewer than 5 episodes), structured patient psychoeducation may be equally effective. High-risk patients in particular may benefit from specific elements of maintenance CBT by reducing cognitive vulnerability factors for recurrent depression, such as ruminating, negative attributions and memoies, and dysfunctional beliefs, or by maintaining positive emotions when experiencing stress. (Stangier, 2013) Studies show that a 4 to 6 session trial should be sufficient to provide evidence of symptom improvement, but functioning and quality of life indices do not change as markedly within a short duration of psychotherapy as do symptom-based outcome measures. (Critis-Christoph, 2001). See Number of psychotherapy sessions for more information. See also Bibliotherapy; Computer-assisted cognitive therapy. Pyschotherapy visits are generally separate from physical therapy visits.

ODG Psychotherapy Guidelines:

Up to 13-20 visits over 7-20 weeks (individual sessions), if progress is being made. (The provider should evaluate symptom improvement during the process, so treatment failures can be identified early and alternative treatment strategies can be pursued if appropriate.) In cases of severe Major Depression or PTSD, up to 50 sessions if progress is being made.

The IRO doctor, an MD specializing in Family Medicine, thought the requested treatment was not medically necessary, noting Claimant received “several” sessions of psychotherapy from which he did not show any improvement. The IRO doctor also observed that there was no recent reassessment submitted for review with updated psychometric testing measures and that the request was nonspecific and did not indicate the frequency and duration of the requested treatment.

Claimant testified there was improvement, and he needed the additional psychotherapy sessions to improve his mental health status because without therapy, he felt lost and confused. There was a letter to that effect from LD, M.Ed., LPC, LCDC, USAF Ret. TSgt. Dr. D noted Claimant had made gradual progress and improvement but due to the intermittent nature of approval for his sessions, there was a tendency to regress in his treatment. However, neither Claimant nor Dr. D cited the ODG treatment guidelines or any other evidence based medical evidence to support their position. Moreover, there was insufficient medical evidence presented to show that Claimant was making sufficient progress at his prior sessions in order to show the current request for additional sessions is medically necessary under the ODG.

There was no objection to the testimony, reports, or qualifications of any doctor.

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. The Texas Department of Insurance, Division of Workers’ Compensation has jurisdiction to hear this matter.
    2. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
    3. On (Date of Injury), Claimant was the employee of (Employer), Employer.
    4. On (Date of Injury), Employer provided workers’ compensation insurance with Amerisure Mutual Insurance Company, Carrier.
    5. On (Date of Injury), Claimant sustained a compensable injury.
    6. The Texas Department of Insurance appointed C-IRO, Inc., as the independent review organization (IRO) in this matter.
    7. The IRO determined that the proposed psychotherapy for PTSD is not health care reasonably required/ 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 Hearing Officer’s Exhibit Number 2.
  3. The request for psychotherapy for PTSD is not health care reasonably required for the compensable injury of (Date of Injury).
  4. CONCLUSIONS OF LAW
  5. The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
  6. Venue is proper in the (City) Field Office.
  7. The preponderance of the evidence is not contrary to the decision of the IRO that the Claimant is not entitled to psychotherapy for PTSD for the compensable injury of (Date of Injury).
  8. DECISION

The preponderance of the evidence is not contrary to the decision of the IRO that the Claimant is not entitled to psychotherapy for PTSD 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 Section 408.021 of the Act.

The true corporate name of the insurance carrier is AMERISURE MUTUAL INSURANCE COMPANY, and the name and address of its registered agent for service of process is

ROBIN MILLER

5221 N. O’CONNOR BLVD., SUITE 400

IRVING, TEXAS 75039-3711

Signed this 27th day of January, 2017.

Dee Marlo Chico
Hearing Officer

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 Hearing Officer determines that the preponderance of the evidence-based medical evidence is not contrary to the decision of the Independent Review Organization (IRO) that Claimant is not entitled to a left shoulder arthroscopic biceps tenodesis for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

A contested case hearing was held on January 19, 2017, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that Claimant is not entitled to a left shoulder arthroscopic biceps tenodesis for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant (hereinafter referred to as Claimant) appeared and was assisted by SA, ombudsman. Respondent/Carrier (hereinafter referred to as Carrier) appeared and was represented by BJ, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: RGM

For Carrier: None

The following exhibits were admitted into evidence:

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

Claimant’s Exhibits C-1 through C-3

Carrier’s Exhibits CR-A through CR-I

DISCUSSION

Claimant is a master carpenter with Employer and sustained compensable bilateral shoulder injuries on (Date of Injury), when he lost his footing as he was coming down from an attic. He was able to catch himself with his hands, then dropped to the ground. After initial conservative treatment failed to provide lasting relief, an MRI revealed the presence of a biceps tear in Claimant’s left arm. Claimant underwent rotator cuff surgery on November 17, 2015, but continues to have left shoulder pain. A request for preauthorization of the requested left shoulder biceps tenodesis was submitted to Carrier. After a review by Carrier’s utilization review agent, the request was denied. It was again denied on reconsideration and the provisions for independent review were invoked. The Texas Department of Insurance selected Clear Resolutions as the IRO. Clear Resolutions assigned the review to a physician reviewer who is Board certified in orthopedic surgery. On December 2, 2016, Clear Resolutions issued its Notice of Independent Review Decision, advising the parties that it recommended that Carrier’s denial be upheld. Claimant then invoked the Division’s dispute resolution process in accordance with the Act and the Rules.

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 in making decisions for the care of an individual patient. 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. The focus of any health care dispute starts with the health care set out in the ODG. 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. (Division Rule 133.308 (s).)

In determining the weight to be given to expert testimony, a trier of fact must first determine if the expert is qualified to offer it. The trier of fact must then determine whether the opinion is relevant to the issues at bar and whether it is based upon a solid foundation. An expert's bald assurance of validity is not enough. E.I. Du Pont De Nemours and Company, Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Evidence is considered in terms of the general acceptance of the theory and technique by the relevant scientific community; the expert's qualifications; the existence of literature supporting or rejecting the theory; the technique's potential rate of error; the availability of other experts to test and evaluate the technique; and the experience and skill of the person who applied the technique on the occasion in question. Kelly v. State, 792 S.W.2d 579 (Tex.App.-Fort Worth 1990). A medical doctor is not automatically qualified as an expert on every medical question and an unsupported opinion has little, if any, weight. Black v. Food Lion, Inc., 171 F.3rd 308 (5th Cir. 1999).

The IRO physician reviewer’s report noted that the requested tenodesis was not approved by the first utilization review agent because there were marginal findings on the MRI and no clear clinical indication that repeat left shoulder surgery was appropriate. He also noted that the procedure had been again denied by the second utilization review agent “as there was no clinical documentation regarding the degree of a SLAP lesion on the prior MRI study” and it was “also unclear what course of physical therapy was completed following surgery.” The physician reviewer also noted that guidelines do not recommend biceps tenodesis for patients above the age of 40 with a concomitant rotator cuff repair. Claimant is (Age) years of age. The physician reviewer wrote that it was unclear whether the absence of the biceps tendon was due to an interval tear or a previous biceps tenodesis procedure, that Claimant’s most recent physical examination findings noted a positive O’Brien sign, the medical records did not discuss failure of conservative management since surgery in 2015, and the records did not address the utilization review agent’s concerns. Citing the ODG and his medical judgment, clinical experience and expertise, he concluded that the denial of the requested left shoulder tenodesis should be upheld.

With regard to biceps tenodesis, the ODG provides the following:

Surgery for biceps tenodesis

Recommended as an option for type II or type IV SLAP lesions in patients over 40 years of age. See SLAP lesion diagnosis. Biceps tenodesis (suture of the end of the tendon to the bone) is a surgical procedure usually performed for the treatment of refractory biceps tendonitis of the shoulder. A biceps tenodesis may be performed as an isolated procedure, or part of a larger shoulder surgery such as a rotator cuff repair. Patients with biceps tendon problems may have a detachment of the biceps tendon from the socket of the shoulder (a SLAP tear), or they may have inflammation and irritation of the biceps tendon itself. A biceps tenodesis is usually performed in patients over the age of 40, whereas other procedures such as a SLAP repair may be attempted in younger patients. Individuals older than 35 years with an isolated type II SLAP lesion had a shorter postoperative recovery, a more predictable functional outcome, and a higher rate of satisfaction and return to activity with biceps tenodesis compared with a biceps repair. Based on these observations, biceps tenodesis is preferable to biceps repair for isolated type II SLAP lesions in non-overhead athletes older than 35 years. (Denard, 2014) Surgical repair remains the gold standard for most type II and type IV SLAP lesions that fail nonoperative management. However, more recently reported data has demonstrated unacceptably high failure rates with primary repair of type II SLAP lesions. Biceps tenodesis may offer an acceptable, if not better, alternative to primary repair of SLAP lesions. This study adds to the evolving literature supporting biceps tenodesis as a viable treatment for type II and IV SLAP lesions. (Gottschalk, 2014) Successful arthroscopic repair of symptomatic superior labral tears in young athletes has been well documented. Superior labral repair in patients older than 40 years is controversial, with concerns for residual postoperative pain, stiffness, and higher rates of revision surgery. While studies show that good outcomes can be obtained with SLAP repair in an older cohort of patients, age over 40 and workers' compensation status are independent risk factors for increased surgical complications. The cumulative evidence supports labral debridement or biceps tenotomy over labral repair when an associated rotator cuff injury is present. (Erickson, 2014) Biceps tenodesis is a viable treatment option for SLAP repair. (Huri, 2014) Practice trends indicate that the proportion of SLAP repairs has decreased over time, with an increase in biceps tenodesis and tenotomy. Increased patient age correlates with the likelihood of treatment with biceps tenodesis or tenotomy versus SLAP repair. For patients with isolated SLAP lesions, the proportion of SLAP repairs decreased from 69.3% to 44.8%, while biceps tenodesis increased from 1.9% to 18.8%, and biceps tenotomy increased from 0.4% to 1.7%. For patients undergoing concomitant rotator cuff repair, SLAP repair decreased from 60.2% to 15.3%, while biceps tenodesis or tenotomy increased from 6.0% to 28.0%. There was a significant difference in the mean age of patients undergoing SLAP repair (37.1 years) versus biceps tenodesis (47.2 years) versus biceps tenotomy (55.7 years). (Patterson, 2014) See also Surgery for SLAP lesions.

Criteria for Surgery for Biceps tenodesis:

Claimant offered a letter from his surgeon, TM, M.D., that urged approval of the request for tenodesis. Dr. M’s letter did not address the ODG, did not address the type of SLAP lesion involved, and did not tend to show that Claimant is an outlier whose condition should not be treated within the recommendations of the ODG. Carrier offered a report from BS, M.D., who is also an orthopedic surgeon. Dr. S concurred with the utilization review agents and IRO physician reviewer in finding that the requested left shoulder tenodesis is not medically necessary for the compensable injury. After consideration of all of the evidence presented, the Hearing Officer finds that the preponderance of the evidence-based medical evidence is not contrary to the IRO determination that a left shoulder arthroscopic biceps tenodesis is not health care reasonably required for the compensable injury of (Date of Injury).

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 as follows:
    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 insurance through Carrier.
    4. Claimant sustained a compensable bilateral shoulder injury on (Date of Injury).
    5. The Texas Department of Insurance appointed Clear Resolutions as the Independent Review Organization to review Carrier’s denial of preauthorization for the requested left shoulder arthroscopic biceps tenodesis.
    6. The Independent Review Organization upheld Carrier’s denial of preauthorization.
  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 Hearing Officer’s Exhibit Number 2.
  3. There is evidence-based medical evidence set forth in the ODG addressing arthroscopic biceps tenodesis of the shoulder.
  4. The IRO physician reviewer determined that there was insufficient medical documentation of the grade of the SLAP lesion, conservative management and other factors to warrant approval of the requested left shoulder arthroscopic biceps tenodesis.
  5. The preponderance of the evidence-based medical evidence is not contrary to the IRO’s determination that the requested left shoulder arthroscopic biceps tenodesis is not health care reasonably required for the compensable injury of (Date of Injury).
  6. CONCLUSIONS OF LAW
  7. The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
  8. Venue is proper in the (City) Field Office.
  9. Left shoulder arthroscopic biceps tenodesis is not health care reasonably required for the compensable injury of (Date of Injury).
  10. DECISION

Claimant is not entitled to left shoulder arthroscopic biceps tenodesis 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 Section 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

RICHARD GERGASKO, PRESIDENT

6210 EAST HWY. 290

AUSTIN, TEXAS 78723

Signed this 26th day of January, 2017.

KENNETH A. HUCHTON
Hearing Officer

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 Hearing Officer determined that Claimant/Petitioner is not entitled to the additional brain injury rehabilitation program x 12 visits for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

On January 17, 2017, Gerri Thomas, a Division hearing officer, held a contested case hearing to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the IRO that the Claimant is not entitled to the additional brain injury rehabilitation program x 12 visits?

PARTIES PRESENT

Claimant/Petitioner appeared and was assisted by MV, ombudsman. Petitioner, (Healthcare Provider), appeared telephonically and was assisted by SE, lay representative. Carrier/Respondent appeared and was represented by WS, attorney.

DISCUSSION

Medical Necessity

Evidence Based Medicine (EBM)

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."

On the date of this medical contested case hearing, the Official Disability Guidelines provides the following with regard to interdisciplinary rehabilitation programs (TBI):

Criteria for Interdisciplinary brain injury rehabilitation programs (postacute care):

Admission (applies to moderate and severe TBI):

Residential Transitional Rehabilitation (i.e., inpatient):

Day Treatment (i.e., outpatient):

Continued Stay:

The parties stipulated that Claimant’s compensable injury of (Date of Injury), extends to include a closed head trauma, dizziness, chest contusion, left sided face contusion, low back strain, neck sprain/strain, bilateral knee contusions, and post injury headache. Ultimately, an IRO was requested for an additional brain injury rehabilitation program x 12 visits.

In an IRO dated October 5, 2016, the IRO Reviewer upheld previous denials of the requested additional brain injury rehabilitation program x 12 visits.

Claimant/Petitioner relied on his testimony, the medical records offered, and a January 9, 2017, opinion from one of his treating doctors, MS, M.D., to support his position regarding the issue in dispute.

The evidence offered, including the opinion of Dr. S, did not provide a persuasive explanation through the use of evidence-based medical evidence as to how Claimant/Petitioner met the requirements of ODG for the requested additional brain injury rehabilitation program x 12 visits. Claimant/Petitioner also did not establish the necessity of the requested additional brain injury rehabilitation program x 12 visits at issue through other evidence-based medical evidence. As such, insufficient evidence-based medical evidence existed to explain that the requested additional brain injury rehabilitation program x 12 visits was medically reasonable and necessary. Therefore, the preponderance of the evidence is not contrary to the decision of the IRO that Claimant/Petitioner is not entitled to the additional brain injury rehabilitation program x 12 visits.

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:
    1. The Texas Department of Insurance, Division of Workers’ Compensation has jurisdiction to hear this matter.
    2. Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
    3. On (Date of Injury), Claimant/Petitioner was the employee of (Employer), Employer.
    4. On (Date of Injury), Employer provided workers’ compensation insurance as a Self-Insured.
    5. On (Date of Injury), Claimant/Petitioner sustained a compensable injury.
    6. The compensable injury of (Date of Injury), extends to include a closed head trauma, dizziness, chest contusion, left sided face contusion, low back strain, neck sprain/strain, bilateral knee contusions, and post injury headache.
    7. The Independent Review Organization determined that Claimant/Petitioner should not have the requested treatment of the additional brain injury rehabilitation program x 12 visits.
    8. Claimant/Petitioner filed his appeal of the decision of the IRO on October 13, 2016, which was timely.
  2. Carrier/Respondent delivered to Claimant/Petitioner a single document stating the true corporate name of Carrier/Respondent, and the name and street address of Carrier/Respondent’s registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  3. Based on the evidence offered, the additional brain injury rehabilitation program x 12 visits 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 Claimant is not entitled to the additional brain injury rehabilitation program x 12 visits for the compensable injury of (Date of Injury).

DECISION

Claimant/Petitioner is not entitled to the additional brain injury rehabilitation program x 12 visits for the compensable injury of (Date of Injury).

ORDER

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 §408.021.

The true corporate name of the insurance carrier is (SELF-INSURED), and the name and address of its registered agent for service of process is:

(NAME)

(ADDRESS).

(CITY), TX (ZIPCODE)

Signed this 17th day of January, 2017.

Gerri Thomas
Hearing Officer

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 Hearing Officer determines that Claimant is not entitled to a rehab room from February 13, 2015, through September 19, 2015, for the compensable injury of (Date of Injury).

STATEMENT OF THE CASE

A contested case hearing was held on September 28 2013, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the Independent Review Organization that Claimant is not entitled to a rehab room from February 13, 2015, through September 19, 2015, for the compensable injury of (Date of Injury)?

PARTIES PRESENT

Petitioner/Claimant appeared and was represented by HA, attorney. Respondent/Carrier appeared and was represented by JS, attorney.

EVIDENCE PRESENTED

The following witnesses testified:

For Claimant: BS, M.D.

PT

ET

For Carrier: None

The following exhibits were admitted into evidence:

Hearing Officer’s Exhibits HO-1 and HO-2.

Claimant’s Exhibits C-1 through C-7.

Carrier’s Exhibits CR-A through CR-K.

DISCUSSION

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 (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 Section 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, in making decisions for the care of an individual patient. 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. The focus of any health care dispute starts with the health care set out in the ODG.

Claimant sustained a compensable right ankle fracture on (Date of Injury). He underwent surgery for the fracture that include the implantation of hardware. Claimant is an older gentleman and is diabetic. As a result of comorbidities, Claimant experienced significant healing problems and had to undergo plastic surgery to address non-healing wounds. As a result of the additional problems, Claimant was non-weightbearing on his right leg and he used a wheelchair for a number of months. During the time that he was in the wheelchair, Claimant rented a wheelchair-accessible room at a Townplace Suites, an extended-stay hotel in (City). Claimant refers to that room as a “rehab room.” Claimant contends that the wheelchair-accessible room is health care reasonably required for his compensable injury and requested reimbursement for the money he spent staying in the hotel for approximately seven months, from early February of 2015, through August or September of 2015. During part of the time he was staying at the hotel, Claimant underwent outpatient physical therapy. He also had several surgeries that necessitated overnight stays in the hospital. Despite not being at the hotel while in the hospital for the surgeries, Claimant kept the room to avoid the possibility that someone else would rent it and he would be unable to return to the hotel after being discharged from the hospital. Claimant did not receive any medical care or treatment in the hotel; it was simply a place to stay. He and his wife decided to seek alternate living arrangements because of difficulty in navigating his home and his daughter’s home (where he stayed for a very brief period) in the wheelchair. There was no prescription for the use of the wheelchair tendered into evidence and the evidence failed to show that the use of wheelchair accessible housing, although certainly more convenient for Claimant and his family, was medically necessary.

Claimant contends that he should be reimbursed for the use of the hotel room because someone, who could be a social worker or nurse case manager for Carrier, told him that she was familiar with the types of rooms at the hotel and that she saw no reason why Carrier would not allow the room to be direct billed. Despite that reported assurance, there was no contact with Claimant’s adjuster about the room until August of 2015. Claimant’s wife testified that she called the adjuster about the room and was told that Carrier would not pay for a hotel room. Ms. (wife) testified that the adjuster was rude, so she hung up on her. The next contact between Claimant and Carrier about the request for reimbursement appears to have been made in January of 2016 when Claimant, through his attorney, submitted a request for reimbursement of the money spent by Claimant to pay for the hotel room. The bill of charges tendered by the attorney on Claimant’s behalf included charges for the room from February 3, 2015, through August 12, 2015. Claimant currently seeks reimbursement for the hotel room from February 13, 2015, through September 19, 2015. There is no documentation to support the request for reimbursement for the period beginning on August 13, 2015, and continuing through September 19, 2015.

In January of 2016, Claimant requested that Carrier reimburse him for the use of the hotel room. Claimant’s request for reimbursement of the hotel room, characterized the room as a “rehab room,” was submitted to a utilization review agent. The utilization review agent recommended that the reimbursement request be denied; and it was. Claimant requested reconsideration of his request. It was denied a second time. Claimant then availed himself of the Independent Review Organization appeal process for denial of health care. After considering the request, the Independent Review Organization’s physician reviewer agreed with Carrier’s utilization review agents and upheld Carrier’s denial of the request for reimbursement. Claimant then appealed the Independent Review Organization’s decision to the Division.

A decision issued by an Independent Review Organization (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. (Division Rule 133.308(s).) The ODG does not address the use of wheelchair accessible accommodations and Claimant did not offer any other evidence based medical evidence to substantiate the need to stay in a wheelchair accessible “rehab” room.

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 as follows:

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

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

C.On (Date of Injury), Employer provided workers’ compensation insurance through (Carrier), Carrier.

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

E.The TDI appointed Magnolia Reviews of Texas, LLC, as the independent review organization in this matter.

  • 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.
  • Claimant did not receive a prescription for the use of a wheelchair or a wheelchair accessible room or residence in conjunction with the treatment and care for the compensable injury of (Date of Injury).
  • Claimant’s use of a wheelchair accessible room, referred to as a “rehab room,” from February 13, 2015, through September 19, 2015, was not medically necessary for the compensable injury of (Date of Injury).
  • The evidence fails to show that Claimant incurred expenses for a wheelchair accessible “rehab room” from August 13, 2015, through September 19, 2015.
  • There is no evidence based medical evidence that supports Claimant’s use of the wheelchair accessible “rehab room” at Towneplace Suites from February 13, 2015, through September 19, 2015, for the compensable injury of (Date of Injury).
  • Claimant’s use of a wheelchair accessible “rehab room” at Towneplace Suites from February 13, 2015, through September 19, 2015, was a matter of choice for his personal convenience and comfort and the use of the wheelchair accessible room was not a medical necessity.
  • 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. A rehab room from February 13, 2015, through September 19, 2015, is not reasonably required health care for the compensable injury of (Date of Injury).

    DECISION

    Claimant is not entitled to a rehab room from February 13, 2015, through September 19, 2015, 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 Section 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

    1999 BRYAN STREET, SUITE 900

    DALLAS, TX 75201-3136

    Signed this 3rd day of October, 2016.

    KENNETH A. HUCHTON
    Hearing Officer

    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 Hearing Officer determines that Claimant is not entitled to a cervical discectomy at C3-C7 with fusion LOS (length of stay) 2 days for the compensable injury of (Date of Injury).

    STATEMENT OF THE CASE

    On September 19, 2016, Carol A. Fougerat, a Division Hearing Officer, 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 the Claimant is not entitled to a cervical discectomy at C3-C7 with fusion LOS 2 days for the compensable injury of (Date of Injury)?

    PARTIES PRESENT

    Petitioner did not appear. Claimant appeared and was assisted by MH, ombudsman.

    Respondent/Carrier appeared and was represented by LM, attorney.

    EVIDENCE PRESENTED

    No witnesses testified at the contested case hearing.

    The following exhibits were admitted into evidence:

    Hearing Officer’s Exhibits: HO-1 and HO-2

    Claimant’s Exhibits: None

    Carrier’s Exhibits: CR-A through CR-F

    DISCUSSION

    Claimant was employed as a truck driver, and he sustained a compensable injury on (Date of Injury). Claimant was referred to DG, D.O., who recommended a cervical discectomy at C3-C7 with fusion and 2 day LOS, which was denied by the Carrier and appealed to an IRO. Prior to opening on the record in this case, Claimant indicated that he no longer desired to undergo the recommended three-level fusion and that he was seeking alternate health care options for treatment of his cervical spine injury. The parties agreed that a Decision and Order should be rendered to resolve this pending appeal.

    The IRO reviewer, identified as a neurosurgeon, upheld Carrier’s denial and determined that the requested procedure was medically not necessary. The IRO reviewer noted that there was no clinical documentation to verify that Claimant had been compliant with the smoking cessation, and therefore, he is not a suitable candidate for undergoing the requested cervical discectomy with fusion at this time. The IRO reviewer also noted that the physician had requested three levels of fusion be performed and that the cervical spine MRI dated June 6, 2014 did not identify any cord compression at C3-4 to warrant surgery at this time. The IRO reviewer referred to the Official Disability Guidelines (ODG) regarding the requested length of stay and opined that two days exceeds the recommendation.

    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 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."

    ODG Criteria for Cervical Fusion:

    (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:

    (a) Significant symptoms that correlate with physical exam findings AND radiologist-interpreted imaging reports.

    (b) Persistent or progressive radicular pain or weakness secondary to nerve root compression or moderate to severe neck pain, despite 8 weeks conservative therapy with at least 2 of the following:

    - Active pain management with pharmacotherapy that addresses neuropathic pain and other pain sources (e.g., an NSAID, muscle relaxant or tricyclic antidepressant);

    - Medical management with oral steroids, facet or epidural injections;

    - 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.

    (c) Clinically significant function limitation, resulting in inability or significantly decreased ability to perform normal, daily activities of work or at-home duties.

    (d) 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 >3mm; OR Sagittal plane translation >20% of vertebral body width; OR Relative sagittal plane angulation >11 degrees.

    (e) Not recommend repeat surgery at the same level.

    (f) 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.

    (g) 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 a 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.

    (h) The decision on technique (e.g., autograft versus allograft, instrumentation) should be left to the surgeon.

    Based on the evidence presented, Claimant failed to prove that he meets the requirements in the ODG for the requested procedure and he failed to present evidence-based medical 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 a cervical discectomy at C3-C7 with fusion LOS 2 days for the compensable injury of (Date of Injury).

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

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

    C.On (Date of Injury), Employer provided workers’ compensation coverage with (Carrier), Carrier.

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

    E.The IRO determined that the proposed cervical discectomy with fusion LOS 2 days is not medically necessary 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.
  • Claimant does not meet the recommendations of the ODG for a cervical discectomy at C3-C7 with fusion LOS 2 days patient hospitalization.
  • A cervical discectomy at C3-C7 with fusion LOS 2 days 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 a cervical discectomy at C3-C7 with fusion LOS 2 days is not health care reasonably required for the compensable injury of (Date of Injury).

    DECISION

    Claimant is not entitled to a cervical discectomy at C3-C7 with fusion LOS 2 days for the compensable injury of (Date of Injury).

    ORDER

    Carrier is not liable for the medical benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with Texas Labor Code §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

    1999 BRYAN STREET, SUITE 900

    DALLAS, TX 75201-3136

    Signed this 19th day of September, 2016.

    Carol A. Fougerat
    Hearing Officer

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