DECISION AND ORDER

This case involves the appeal by the American Home Assurance Company (Carrier), from the decision of an Independent Review Organization (IRO) that approved a request for preauthorization for an outpatient lateral epicondylectomy and lateral release on the right side.^[1] The decision agrees with the IRO that the procedures are medically necessary and ____ (Claimant) is entitled to have the procedures to correct the epicondylitis condition, which in reasonable medical probability resulted from his use of crutches and a walking cane after his lumbar laminectomy.Thus, the treatment is medically necessary to relieve the effects naturally resulting from his work-related back injury and should be preauthorized.

I.

PROCEDURAL HISTORY, NOTICE & JURISDICTION

There are no contested issues of notice or jurisdiction in this proceeding. Therefore, these matters are set out in the proposed findings of fact and conclusions of law without further discussion here.

On January 23, 2003, Barbara C. Marquardt, Administrative Law Judge (ALJ), convened the hearing on the 4^th floor of the William P. Clements Building, 300 West 15th Street, Austin, Texas. The Claimant’s attorney, Melody Fowler Green, appeared by telephone. Michelle Lopez, attorney, appeared and represented the Carrier. The record closed on the same day.

II.

ISSUE

The issue is whether a lateral epicondylectomy and lateral release on the right side are medically necessary to treat the Claimant’s epicondylitis.

LEGAL STANDARDS

A. Entitlement to Medical Benefits

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. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. §408.021. “Health care” includes ”all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann. § 401.011(19).

B. Preauthorization

Certain categories of health care identified by the Commission require preauthorization, which is dependent upon a prospective showing of medical necessity. Tex. Lab. Code Ann. § 413.014. Outpatient surgical services require preauthorization. 28 Tex. Admin. Code § 134.600(h)(2).

EVIDENCE

A. Basic Facts

The Claimant (approximately 24 years old at the time) was working with a coworker at a _____ on ____, attempting to lift a heavy trash can full of tile debris weighing about 200 pounds. While trying to dump the debris into a dumpster, he sustained an injury to his lower back. This caused pain in the low back with radiation down the leg.

B. Claimant’s Evidence

Dr. Tijerina. Conservative treatment and testing including x-rays, MRI studies, and EMG studies followed the injury. Eventually, the Claimant was referred to a neurosurgeon, Dr. Humberto Tijerina, who treated him conservatively with epidural steroid injections, physical therapy, and anti-inflammatory medications. On _____, about two years after the injury, when this care had not improved the situation, Dr. Tijerina performed a lumbar laminectomy at the L4-L5 level. After surgery, the Claimant still had back pain that radiated down his leg. He received continued treatment for that, including epidural steroid injections, which failed to relieve his symptoms. Due to his continued pain, the Claimant has never been able to return to work.

Dr. Sweeney. Dr. Michael Sweeney, who is a specialist in rehabilitation medicine, first noted the Claimant was complaining about elbow pain in May 2001. He diagnosed the problem as lateral epicondylitis (tennis elbow) and treated it conservatively with anti-inflammatory medication, physical therapy, a lateral tennis elbow brace, and one steroid injection into the lateral epicondylitis. The board-certified orthopedic surgeon who reviewed this case for the IRO described this treatment as “good conservative treatment.”^[2]

Dr. Sweeney noted the Claimant, who is right hand dominant, was required to use crutches and a walking cane after his back surgery, and he noted the repetitive stress of the extensor muscles or forearm muscles caused by using these aids can predispose a person to the development of lateral epicondylitis. On July 1, 2002, Dr. Sweeney noted that the Claimant had pain and tenderness right over the extensor brevis tendon. Furthermore, he stated an MRI demonstrated a lateral epicondylitis. At that point in time, he decided to seek preauthorization to perform lateral epicondylectomy and lateral release.^[3]

Dr. Schroeder. Another physician who addressed the Claimant’s problem, Frank W. Schroeder, D.O., who is board certified in orthopedic surgery, evaluated the right elbow on October 8, 2001. Specifically, Dr. Schroeder was asked to determine whether the Claimant’s “tennis elbow” was related to his use of the cane following the back injury. Dr. Schroeder’s examination, which was consistent with tennis elbow, revealed the tenderness directly over the lateral epicondyle, as well as pain reproduced with resisted dorsiflexion of the wrist. Dr. Schroeder concluded: “it is medically reasonable that the patient’s use of the cane is a causative factor in his tennis elbow.”^[4]

Dr. Garza. The Claimant’s treating physician has been Dr. Ben Garza since February 27, 2002. He noted the Claimant’s problems with his right wrist, elbow, and “ulnar neuritis” on June 4, 2002. In his notes, he linked the problem to the Claimant’s use of walking canes after surgery.^[5]

C.Carrier’s Evidence

Dr. Moncada. Most significant, according to the Carrier, was the Claimant’s evaluation by Dr. Armando Moncada, of Valley Hand & Plastic Surgery, on February 5, 2002. The Claimant described his symptoms to Dr. Moncada as continuous pain over the right upper extremity and numbness and occasional loss of strength to part of the right hand (apparently from compression of the involved nerve). At that point in time, the Claimant had attended occupational therapy for several weeks. Dr. Moncada’s findings included the neurological finding of significantly diminished motor strength, with pinch strength of 10 lbs. on the right and left. He seemed to doubt this finding, because he noted “there is hardly any effort on the patient’s part to perform this test.”^[6] Dr. Moncada’s diagnoses included lateral epicondylitis and mild carpal tunnel syndrome, but he felt another electromyogram by a qualified doctor (as opposed to the findings from Dr. Mireles’s office described in the next paragraph) would need to be done to verify that finding. He stated, nonetheless, that the carpal tunnel syndrome might not be related to the use of crutches and a cane by such a young person.

Dr. Mireles. Dr. Ruy Mireles ordered EMG examinations and nerve conduction velocities on the Claimant’s upper extremities on November 9, 2001. The studies found the Claimant’s right hand was normal. Dr. Moncada was critical of that study, because it was only a patch test performed by a physical therapist – not a neurologist or rehabilitation physician. Therefore, according to Dr. Moncada, that “normal” result was not an appropriate basis for determining whether there is compression neuropathy in the Claimant’s right hand. The nerve conduction portion of that study found borderline carpal tunnel syndrome bilaterally, as well as a slight slowing of the right ulnar nerve at the elbow.^[7]

Other Physicians. The Carrier also referenced examinations by three other doctors that did not address Claimant’s elbow/hand condition. On January 16, June 27, and August 8, 2001, the Claimant saw Dr. Kramer, who is board certified in both anesthesiology and pain management, for treatment of his low back and left leg pains. Dr. Kramer’s treatment notes listed the Claimant’s chief complaint as pain, numbness and weakness in the low back and hips, radiating down the left leg. Dr. John Obermiller performed a required medical examination on the Claimant on August 24, 2001, but he was only asked to evaluate his low back pain-related problems. Thus, there is no reference to the elbow/hand issues in his report. Dr. Ruben Pechero, an orthopedic surgeon, evaluated the Claimant on September 18, 2001, for MMI and an Impairment Rating. He only referenced the Claimant’s back pain symptoms; found he had reached MMI on June 9, 2000; and gave him a final Impairment Rating of 14%.^[8]

ANALYSIS

The evidence in this case was sparse. Neither party introduced live, expert testimony. However, the Carrier had the burden of proof, and it did not meet that burden.

In essence, the Carrier’s argument was that only subjective descriptions of the elbow/hand symptoms by the Claimant support the necessity of the requested treatment. As mentioned above, the Carrier pointed to examinations by the following physicians that did not address the Claimant’s elbow/hand problems: Doctors Obermiller, Pechero, and Kramer. The Carrier inferred the Claimant was exaggerating his lack of motor strength symptoms based on Dr. Moncada’s comment about his apparent failure to exert effort during that test. Finally, the Carrier relied on the minimal pathology findings from the neurological tests performed in Dr. Mireles’s office, even though Dr. Moncada criticized the findings as being unreliable.

The Claimant doubted the reliability of Dr. Moncada’s findings, because he is apparently a plastic surgeon. The Claimant argued Dr. Sweeney’s expertise in rehabilitation medicine and Dr. Schroeder’s expertise in orthopedic surgery made them more qualified to diagnose and treat his elbow/hand condition. Furthermore, the Claimant noted Dr. Moncada’s comments addressed carpal tunnel syndrome, which, he argued, is not the issue in this case.

The ALJ finds the evidence weighs in favor of the Claimant’s request for preauthorization. First, Dr. Sweeney had an objective finding to support his July 2002 request for preauthorization – an MRI.

As to the doctors who did not address the Claimant’s elbow/hand problems, the ALJ notes the Claimant first made Dr. Sweeney aware of them in May 2001, and they were treated conservatively for over a year. When the Claimant saw Dr. Kramer in January 2001 for pain management, the elbow was not yet bothering him, and the fact that his other pain treatments in June and August 2001 only treated the Claimant’s back does not mean his elbow and hand were not beginning to bother him – arguably, the epicondylitis had not yet reached an acute pain level. For the same reason, it appears logical to the ALJ that Dr. Pechero would not have considered the elbow problem in determining an impairment rating in September 2001, because at that point in time it had not yet become significantly disabling. When Dr. Obermiller saw the Claimant in August 2001, he only considered the three issues for which the Claimant had been referred to him B he was not asked to comment on the elbow problem.

Four physicians, including the board certified orthopedic surgeon who wrote the IRO opinion, found it medically reasonable to assume that the Claimant’s use of a walker and canes following his surgery led to the development of epicondylitis. The only contrary evidence on that point was from Dr. Moncada, whose finding that the condition might not be related to use of the walker and canes was tentative, at best.

FINDINGS OF FACT

1. (_______ (Claimant) was working with a coworker at _____ on ______, attempting to lift a heavy trash can full of tile debris weighing about 200 pounds. While trying to dump the debris into a dumpster, he sustained an injury to his lower back.
2. For approximately two years following his injury, the Claimant received conservative treatment and testing including x-rays, MRI studies, EMG studies, epidural steroid injections, physical therapy, and anti-inflammatory medications.
3. On _____, about two years after the injury, Dr. Humberto Tijerina performed a lumbar laminectomy at the L4-L5 level.
4. After surgery, the Claimant, who is right hand dominant, used a walker and canes to help him stand and walk.
5. Despite the surgery, the Claimant still had back pain that radiated down his leg. He received continued treatment for that, including epidural steroid injections, which failed to relieve his symptoms.
6. Due to his continued pain, the Claimant has never been able to return to work.
7. Beginning in May 2001, the Claimant began complaining about elbow pain.
8. Four physicians diagnosed the Claimant’s condition as lateral epicondylitis (tennis elbow).
9. For over a year, Dr. Michael Sweeney, a specialist in rehabilitation medicine, treated the elbow condition conservatively with anti-inflammatory medication, physical therapy, a lateral tennis elbow brace, and one steroid injection into the lateral epicondylitis.
10. The repetitive stress on the Claimant’s extensor muscles or forearm muscles caused by using the aids referenced in Finding 3a predisposed him to the development of lateral epicondylitis.
11. As of July 1, 2002, the Claimant had pain and tenderness right over the extensor brevis tendon, and an MRI found he suffered from a lateral epicondylitis.
12. Based on the foregoing, a lateral epicondylectomy and lateral release on the right side is medically necessary to treat the Complainant’s epicondylitis.

CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (the Commission) has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t Code Ann., Ch. 2003.
3. As referenced in Findings 1 and 4 – 7, the Claimant is entitled to the procedure referenced in Finding 7 to relieve the effects naturally resulting from his compensable injury. Tex. Lab. Code Ann.. § 408.021(a).

ORDER

IT IS, THEREFORE, ORDERED that the Claimant, ________, is entitled to preauthorization for a lateral epicondylectomy and lateral release on the right side

Signed this 19th day of February 2003.

BARBARA C. MARQUARDT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. In this case, “Epicondylectomy” involves surgery on an elbow and a nerve release procedure.↑
2. TWCC Ex. 2 at 3.↑
3. TWCC Ex. 1 at 145.↑
4. TWCC Ex. 1 at 118.↑
5. TWCC Ex. 1 at 132.↑
6. TWCC Ex. 1 at 20.↑
7. TWCC Ex. 1 at 40.↑
8. TWCC Ex. at 17.↑