DECISION AND ORDER

The claimant ______is seeking preauthorization for ambulatory surgical center care for a right carpal tunnel decompression and Guyon’s^[1] canal release surgery. The carrier, Twin City Fire Insurance Company (the Carrier), denied preauthorization because, in its view, the objective medical evidence did not demonstrate a need for the procedure. The Texas Workers’ Compensation Commission’s Medical Review Division (MRD) found the procedure was not reasonably required and denied preauthorization. The Administrative Law Judge (ALJ) finds the MRD’s decision should be upheld, and she orders that preauthorization be denied.

I. Procedural History, Notice, and Jurisdiction

The issues of notice and jurisdiction were not contested. Therefore, those matters will be addressed in the findings of fact and conclusions of law without further discussion here.

_______, through her counsel, requested a hearing on the MRD’s denial of the preauthorization request. The Texas Workers’ Compensation Commission (the Commission) referred the case to the State Office of Administrative Hearings (SOAH) on September 1, 2001, and the case was given the docket number set out in the caption. As originally referred_____ doctor, Harry Orenstein, M.D., was the petitioner, as he requested the preauthorization for the procedure. However_____ filed the appeal of the MRD’s denial, and essentially assumed the role of the petitioner in the proceeding. No party raised any question about it or objection to it.

The first hearing convened on October 15, 2001, before ALJ Cathleen Parsley. ____appeared through her counsel, Donald McPhail. The Carrier appeared through its counsel, Robert Josey. The staff of the Commission did not appear, nor did Dr. Orenstein. After the hearing concluded that day, and with the agreement of the parties, the ALJ remanded the case to the MRD for _____to undergo another required medical examination (RME) with another doctor. The order of remand was issued on October 23, 2001. In that order, the ALJ advised the parties that the file would remain open, given that evidence had been taken at the hearing on October 15 and the hearing could be reconvened if necessary, depending on the results of the new RME.

The second RME was conducted on December 10, 2001, and the RME doctor found that the proposed treatment was not necessary. The MRD issued a second decision on December 20, 2001, in its Findings and Decision No. M2-01-0680-02, again denying preauthorization on the grounds that the proposed surgical procedure was not reasonably required. A separate referral of the case was made to SOAH, and it was assigned SOAH Docket No. 453-02-1853.M2. This docket was set for hearing on April 5, 2002, before ALJ William Newchurch. At that time, the parties moved for consolidation of the case with Docket No. 453-02-0036.M2. They also sought a continuance of the hearing until April 22, so that Dr. Orenstein, who had not received notice of the April 5 proceeding, could receive notice and appear at the hearing.

On April 11, 2002, ALJ Parsley granted the motion for consolidation and the motion for continuance. SOAH Docket Nos. 453-02-1853.M2 and 453-02-0036.M2 were consolidated for all purposes under Docket No. 453-02-0036.M2. The hearing was continued until April 22, 2002.

The hearing convened as scheduled before ALJ Parsley, but prior to the hearing, Dr. Orenstein – at least nominally the person who had requested preauthorization for the surgical procedure – notified the ALJ he would not be appearing either in person or by telephone. The hearing proceeded with ______and her counsel and Mr. Josey. The Commission’s staff did not appear. The record was closed at the conclusion of the hearing on April 22, 2002.

II. PREAUTHORIZATION Should Not Be Granted

A. Background. ____incurred injury to her right wrist and forearm and her left wrist on_______, while performing some repetitive tasks in her job as an accountant with Robert Half International, Inc. She reported she was operating a ten-key machine with her right hand when she felt tingling and a painful sensation in the volar wrist. At about the same time, with the repeated flipping and tabbing of materials with her left hand, she developed similar symptoms in that hand. She was off work until November 15, 2000.

In the meantime_______ sought treatment with a Dr. Wood Lewis, who did an examination and ordered nerve studies. The nerve studies were normal and unremarkable. She returned to temporary work with a different company, but after experiencing more difficulties with her wrist and hands, she stopped working on December 8, 2000, and has not worked since that time.

Over time, ____saw a variety of doctors, and had repeat nerve studies performed. The studies again were normal, and while some of the doctors found abnormal physical findings, such as positive Phalen’s, Tinel’s, and carpal tunnel compression tests, others did not. At some point_____ began to see Dr. Orenstein as her treating doctor. In March 2001, he recommended a median and ulnar nerve release, as well as a pronator teres release, and he sought preauthorization for ambulatory surgical care to perform the procedure, as required by 28 Tex. Admin. Code §134.600(h)(1).^[2]

______described to both RME doctors pain and occasional periods of numbness of her hands, and pain in the wrist, the right greater than the left. At the hearings, she stated she loses her grip and her hands get weaker. She does not have the ability to perform “small motions.” She is not currently taking any physical therapy, and she has been told to rest her hands. She is taking anti-inflammatories and pain killers, but she testified her doctors have told her she needs surgery; there is nothing more, short of surgery, they can do to improve her condition.

Robert Winans, M.D., the doctor who conducted the second RME,^[3] found the diagnosis of carpal tunnel syndrome unsupported by either the medical records or by the symptoms ______experiences. He concluded the proposed surgery would not be appropriate treatment.

B. Discussion. Although the ALJ finds it difficult to rule against a claimant’s treating doctor, under the theory that the treating doctor sees the claimant regularly and should know best how to treat the condition he or she sees in the claimant, in this case, she cannot find in favor of _____ and cannot order the proposed treatment. There was no testimony from any of the doctors in this case at either of the hearings, so the ALJ must rely on what she reads in the reports from the doctors. Without some elaboration from Dr. Orenstein about exactly why he thinks the surgery should be performed, there is very little medical support in the record for the preauthorization request, especially in light of a very detailed report from Dr. Winans reflecting his review of the testing performed by other doctors, the testing he performed, the results of his testing, and opining that the surgery should not be performed. In short, what evidence there is in _____favor fails to demonstrate why the preauthorization request should be granted when balanced against more precise and detailed evidence that indicates it should not. As a workers’ compensation claimant, ____ is entitled to “all health care reasonably required which cures or relieves the natural effects of the injury, promotes recovery, or promotes a return to employment.”^[4] The evidence does not demonstrate that the proposed surgery would accomplish any of that, or that she even has a condition susceptible to treatment by the proposed surgery.

Essentially, the sole medical evidence from Dr. Orenstein is comprised of two letters, one dated March 27, 2001, and an undated one, in which he states that ____has positive Tinel’s, Phalen’s, and carpal tunnel compression tests, along with decreased sensation in the median and ulna nerve distribution of her hands. Also, according to these letters, the median nerve in the proximal forearm demonstrates entrapment at the pronator teres region. According to the March 2001 letter, Dr. Orenstein intends to perform the surgery on the right hand and to continue to treat the left arm conservatively for the present.^[5] That is the sum total of the medical evidence from Dr. Orenstein in support of the request for preauthorization.

In contrast, Dr. Winans’s report indicates that he examined ______shoulders, elbows, wrists, thumbs, and fingers. He performed range of motion testing on her elbows, wrists, thumbs, and fingers, as well as neurological testing. He tested her muscle strength, grip strength, joint stability, did a vascular examination, and took girth measurements of her upper extremities to determine if there was atrophy. While _____had some discomfort with the Phalen’s and carpal tunnel compression tests, she did not have the typical response of a patient with carpal tunnel syndrome. Tinel’s testing caused only local pain, and the sensory testing did not demonstrate sensory changes in the fingers. She had no atrophy. The result of the grip strength test indicated she was not giving her maximum effort. The other testing produced largely normal results, and Dr. Winans could not find anything representing a nerve entrapment problem. In Dr. Winans’s words, the examination did not “substantiate the presence of a peripheral nerve problem.” “does not have carpal tunnel syndrome, Guyon’s canal ulnar nerve impingement, nor does she have a proximal median nerve impingement at the pronator teres, either symptomatically, electromyographically, or by physical examination.”^[6]

Dr. Winans recognized in his report that some doctors who examined ______reported abnormal physical findings, such as positive Tinel’s, Phalen’s, and carpal tunnel compression tests, but by the same token, others did not. It is also true that Dr. Winans was not able to say what. does have, if not carpal tunnel syndrome, but he was very clear that his examination could not substantiate a carpal tunnel diagnosis, and that the proposed surgery was not medically necessary. And again, although the ALJ heard no testimony from any medical provider in either of the hearings in this case, she finds Dr. Winans’s report more persuasive than Dr. Orenstein’s letters.

As noted earlier testified about her pain at the hearing and about the weakness in her hands. The ALJ is not at all unsympathetic to _____problem, as one’s hands are critical to the ability to undertake the most ordinary activities of life. Unfortunately, the evidence does not justify granting the preauthorization request for the surgery. The ambulatory surgical center care for a right carpal tunnel decompression and Guyon’s canal release surgery for ______should not be preauthorized.

III. FINDINGS of Fact

1. ______incurred injury to her right wrist and forearm and her left wrist on ______, while performing some repetitive tasks in her job as an accountant with Robert Half International, Inc.
2. In July and August 2000, _____had mild pain, and was treated with physical therapy three times a week.
3. Neurodiagnostic studies done on July 21, 2000, were normal.
4. By August 31, 2000_____– symptoms were predominantly in her right hand, but also appeared in her left hand. She had unusual sensation in the third, fourth, and fifth fingers of her right hand, and numbness and tingling in the thumb and index finger of the left hand.
5. _____did not demonstrate Tinel’s signs on either side. Her grip and pinch strengths were normal, and she had no unusual pain response.
6. During September 2000, _____showed improvement, and by October 4, 2000, she was asymptomatic with no pain complaints. Her pinch and grip strength were normal. She did not have Tinel’s, and was at maximum improvement.
7. _____returned to work on November 15, 2000.
8. In November 2000, after she returned to work, ____suffered a recurrence of pain.
9. Despite the pain, _____showed no evidence of Tinel’s, her capillary refill was good, and her pinch and grip strength were functional without evidence of pain.
10. On December 13, 2000, Dr. Neil T. Chen found that ___had bilateral Tinel’s at the wrists but not at the elbows; compression tenderness; and positive Phalen’s bilaterally. She was treated with a steroid injection.
11. Nerve conduction studies performed on January 6, 2001, were normal.
12. On March 27, 2001, ______doctor, Harry Orenstein, M.D., recommended a right carpal tunnel decompression and Guyon’s canal release surgery.
13. On March 29, 2001, Dr. Orenstein requested preauthorization for the right carpal tunnel decompression and Guyon’s canal release surgery.
14. Twin City Fire Insurance Company (the Carrier) denied Dr. Orenstein’s request for preauthorization on April 3, 2001, and denied it again on May 3, 2001, on a request for reconsideration.
15. ______underwent a required medical examination (RME) on July 3, 2001, with Jack Kern, M.D.
16. Following a limited examination, Dr. Kern found that ______did not have carpal tunnel syndrome and that she would not benefit from carpal tunnel or Guyon’s canal surgery.
17. On July 18, 2001, based in part on Dr. Kern’s examination and opinion, the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) handed down its findings and decision denying Dr. Orenstein’s preauthorization request.
18. On August 10, 2001, _____rather than Dr. Orenstein, appealed the MRD’s decision referred to in the previous finding.
19. On September 11, 2001, the staff of the Texas Workers’ Compensation Commission (the Commission) issued a notice of hearing notifying the parties of a hearing on. _______appeal.
20. A hearing on ______appeal was held on October 15, 2001, as scheduled in the notice of hearing.
21. ______and the Carrier appeared through their counsel. The staff of the Commission did not appear, nor did Dr. Orenstein.
22. On October 23, 2001, with the agreement of the parties, the case was remanded to the MRD so that ______could obtain other RME.
23. The second RME was done by Robert G. Winans, M.D., on December 10, 2001.
24. Dr. Winans found that ______did not have carpal tunnel syndrome and would not benefit from the proposed surgery.
25. On December 19, 2001, the MRD issued a second decision denying the preauthorization request.
26. The appeal of the second MRD decision was referred to the State Office of Administrative Hearings (SOAH) and given SOAH Docket No. 453-02-1853.M2.
27. On April 11, 2002, SOAH Docket Nos. 453-02-0036.M2 and 453-02-1853.M2 were consolidated for all purposes, and the hearing was set for April 22, 2002.
28. The day prior to the hearing, Dr. Orenstein notified SOAH that he would not be appearing, either by telephone or in person.
29. The hearing convened as scheduled on April 22, 2002. ______and the Carrier appeared and participated in the hearing. The staff of the Commission did not appear, and in accordance with his statement to SOAH on the day before, neither did Dr. Orenstein.
30. _____does not have a positive Phalen’s test, a positive Tinel’s test, or a positive carpal tunnel compression test.
31. _____does not have sensory changes in her fingers.
32. _____has no tenderness over the shoulders or elbows, and range of motion in her thumbs and fingers is within normal limits.
33. The range of motion in her right elbow is somewhat limited in flexion, but she has symmetrical flexion in other positions.
34. Supination and pronation in elbow joint rotation are symmetrical.
35. _____has no tenderness over the lateral or medial epicondyle.
36. _____muscle strength in her shoulder girdle and in her hands is normal bilaterally.
37. ______elbow and wrist strength is strong to the point of relaxation.
38. _____skin is normal bilaterally in texture, color, and temperature, and her hair growth and nails are normal.
39. ______radial pulses are normal bilaterally.
40. ______has no instability in the shoulder, elbow, wrist, thumb, or finger joints.
41. _______gave submaximal effort in grip strength testing.
42. _______does not have atrophy in her upper extremities.
43. _______does not have a peripheral nerve problem.
44. _______does not have symptoms representing a nerve entrapment problem.
45. _______does not have carpal tunnel syndrome, Guyon’s canal ulnar nerve impingement, or proximal median nerve impingement at the pronator teres.

IV. CONCLUSIONS of Law

1. The Texas Workers’ Compensation Commission (the Commission)has jurisdictionover the issue presented pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. §413.031.
2. The State Office of Administrative Hearings has jurisdiction over all matters related to the hearing in this case, including the issuance of this decision and order, pursuant to Tex. Gov’t Code Ann. ch. 2003 and pursuant to §413.031(d) of the Act.
3. Notice of the hearing was proper and timely, as required by the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001.
4. A right carpal tunnel decompression and Guyon’s canal release surgery for ___is not reasonably required to cure or relieve the natural effects of her injury, will not promote recovery, and will not promote a return to employment. Tex. Lab. Code Ann. §408.021.
5. Preauthorization sought under 28 Tex. Admin. Code §134.600(h)(1) for ambulatory surgical center care for a right carpal tunnel decompression and Guyon’s canal release should be denied.

ORDER

IT IS, THEREFORE, ORDERED that the request of Harry Orenstein, M.D., and ___ for preauthorization for ambulatory surgical center care for a right carpal tunnel decompression and Guyon’s canal release for Ms. King is denied.

Signed May 17, 2002.

CATHLEEN PARSLEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Some of the medical reports in this case refer to the canal as the “Guyon’s” canal; others call it simply the “Guyon” canal. There being no evidence on which, if either, is correct or more accurate, the Administrative Law Judge will refer to it as the former in this decision.↑
2. The rule states: (h) The health care treatments and services requiring pre-authorization are: (1) all nonemergency hospitalizations, ambulatory surgical center care, and transfers between facilities[.]↑
3. Jack Kern, M.D., saw _____on July 3, 2001, for the first RME. He concluded she did not have carpal tunnel syndrome, and he thought the proposed surgery could do more harm than good. However, the examination did not go well for either doctor or patient. Dr. Kern’s report, while very valuable for purposes of understanding the history of the injury, her doctors’findings, and the tests they performed, and for his general medical opinion about carpal tunnel syndrome and repetitive motion injuries, is of somewhat limited value in terms of reliance on it in deciding the contested issue of the case.↑
4. Tex. Lab. Code Ann.§408.021.↑
5. Exh. 2, pp. 6, 13.↑
6. Exh. 2, p. 63.↑