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Medical Contested Case Hearing Decision Manual - Medical Necessity Disputes

Table of Contents

Acronym List

Overview
§413.011(e) requires the Division to adopt treatment guidelines and protocols. It further requires that these treatment guidelines and protocols must be evidence-based, scientifically valid, and outcome-focused and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. The Division adopted the ODG as its treatment guidelines. Medical care provided in accordance with the ODG is presumed reasonable. §413.017.

§401.011(18-a) provides:

"Evidence-based medicine" means the use of 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 about the care of individual patients.

§401.011(22-a) provides:

"Health care reasonably required" means 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 that evidence is not available, generally accepted standards of medical practice recognized in the medical community.

"Health Care Reasonably Required" Must Be Health Care Proposed or Provided to Treat a Compensable Injury/Condition.
The IRO found Claimant to be entitled to arthroscopic subacromial decompression of the left shoulder, distal clavicle excision of the left shoulder, and purchase of a post-operative sling-shot brace and pain pump for Claimant's injury. In particular, the IRO found that such treatment for Claimant's "chronic impingement syndrome" was "medically reasonable and necessary." Prior to the MCCH on this dispute, an indemnity contested case hearing was held and the HO determined that Claimant's compensable injury did not extend to include impingement syndrome and the HO's decision was affirmed by the Division Appeals Panel. As a result of the MCCH, the HO found that Claimant was not entitled to the proposed procedure and durable medical equipment at issue because such health care was treatment not for the compensable injury, but, rather, for a condition found not to be compensable. Consequently, the decision of the IRO was reversed. M6-10-25009-01.

Burden of Proof
The party challenging the IRO decision has the burden of proof to overcome the decision issued by the IRO by a preponderance of evidence-based medical evidence. Rule 133.308(s). Evidence-based medical evidence entails the opinion of a qualified expert that is supported by EBM, if EBM exists.

Where the IRO Decision Contains Material Errors or Is Predicated Upon Incorrect Information, the Appealing Party Must Still Meet its Burden by a Preponderance of the Evidence-Based Medical Evidence and if Evidence-Based Medicine Does Not Exist, then the Generally Accepted Standards of Medical Practice Recognized in the Medical Community
Claimant sought IRO approval of thoracic facet injections for his compensable injury. In the IRO reviewer's denial, the reviewer addressed the medical necessity of a different procedure, a medial branch block. Despite the error, the HO upheld the IRO decision because Claimant failed to provide evidence-based medical evidence in support of the requested thoracic facet injections. M6-09-15714-01.

ODG in Effect on the Date of the MCCH Takes Precedence Over the Version in Effect at Time of IRO Decision
 The IRO decision held that Claimant was not entitled to ten 8-hour sessions of chronic pain management. The ODG entry on chronic pain management in effect at the time of the IRO decision limited this treatment to injuries less than 2 years old. Claimant's injury occurred more than 2 years prior to the IRO review. The ODG section on chronic pain management in effect at the time of the MCCH contained no such time restriction. Claimant also produced testimony from a qualified expert, whose analysis was supported by EBM and who established that Claimant met each of the ODG criteria in effect at the time of the MCCH for this treatment. Consequently, the HO reversed the IRO decision. M6-09-17022-01.

When a party appeals an adverse decision of the IRO, that party must show that the preponderance of the evidence is contrary to the IRO decision through the opinion of a qualified expert that is supported by EBM, if EBM exists. See MCCH 09212, MCCH 09159, MCCH 10194, and MCCH 11126.

Expert Opinion in MCCH on Necessity Must Be Supported by EBM if EBM Exists
 The IRO denied the request of Claimant's doctor for a CT scan without contrast, a CAT scan, lumbar spine with contrast, and myelography lumbosacral RAS-S based on the ODG. The requesting doctor testified in the MCCH that the proposed procedures were necessary for surgical planning. Though the HO noted that the doctor was a qualified expert, the HO found that the doctor's testimony had "no proven foundation in evidence based medicine" and was contrary to the "precautionary statements" found in the ODG. As Claimant did not meet his burden of establishing the necessity of the requested procedures by a preponderance of evidence-based medical evidence, the IRO denial was upheld. M6-09-18360-01.

The IRO denied Claimant's request for lumbar discography at L2/3, L3/4, L4/5, and L5/S1 for the compensable injury based on the ODG and the fact that Claimant's medical records did not document lumbar instability or whether Claimant had undergone facet injections. In the MCCH, Claimant's doctor acknowledged in his testimony that Claimant's lumbar spine was stable and that facet injections had not been performed. He further testified that he was Claimant's treating doctor and that he should make the final determination concerning Claimant's treatment, including whether a discogram should be performed. No EBM was presented by Claimant in the MCCH in support of the requested procedure. Consequently, the HO found that Claimant did not meet his burden of overcoming the IRO decision and the IRO denial was upheld. M6-09-17149-01.

The appealing party must establish the medical necessity of all of the health care requested to be approved by the IRO.

Party Cannot Prevail Where Medical Necessity of only Part of the Proposed Health Care Established
 The decision of the IRO denied Claimant's request for outpatient caudal epidural steroid injection with lysis of adhesions. At the MCCH, Claimant did not present evidence-based medical evidence in support of either proposed procedure. The HO noted in her decision that, even if Claimant had established the necessity of the proposed injection by a preponderance of evidence-based medical evidence, he was also required to establish the necessity of the requested lysis of adhesions by a preponderance of evidence-based medical evidence. Based on the evidence presented, the decision of the IRO was affirmed. M6-10-25004-01.

Evidence at MCCH on Health Care Reasonably Required (22-a)
Subject to the timely exchange rules, a HO shall accept all written reports signed by a HCP. §410.165(b). Medical records not provided to the IRO but that were created prior to the date of the IRO review may be considered by the HO in determining the necessity of proposed medical treatment. See MCCH 08046. However, records of medical treatment that were created following the IRO review cannot be considered by the HO in deciding the necessity of proposed medical treatment, though such reports may be the basis for a resubmission request to Carrier.

Medical Records Created after an IRO Review Cannot be Considered by the HO in Determining the Medical Necessity of Proposed Treatment
 The IRO denied Claimant's request for left knee arthroscopy and debridement chondromalacia. The rationale for the IRO denial was that it was not shown that Claimant had failed conservative treatment, which was among the criteria for the procedure found in the ODG. Prior to the IRO review, Claimant received a Depo-Medrol injection, but the evidence presented in the MCCH indicated that the results of that injection did not become available until after the IRO decision was issued. The HO decision indicates that Claimant argued that the evidence, including the injection results, established that she had failed conservative treatment as required in the ODG. The HO, however, upheld the IRO denial of the proposed treatment and noted in the decision that the evidence available to the IRO reviewer indicated that Claimant had not failed conservative treatment at that time of the request, but that Claimant or her provider could resubmit the request for the proposed treatment considering the results of the injection. M6-08-10212-01.

Evidence-Based Medicine
MCCH decisions must be based on EBM, if available as provided in §401.011 (22-a). This is consistent with the principle that a judge without a jury must weigh the evidence based on the principles of science based evidence. Black v. Food Lion, Inc., 171 F.3rd 308 (5th Cir. 1999).

If the evidence establishes that EBM does not exist, the fact finder's inquiry shifts to whether the proposed treatment is health care reasonably required in accordance with "generally accepted standards of medical practice recognized in the medical community." See §401.011(22-a)

Expert Evidence and Testimony
Expert evidence is required in all medical necessity disputes.

Claimant's Lay Testimony Not Probative on Question Requiring Expert Evidence
 The IRO denied Claimant's request for a repeat lumbar MRI because there was no showing of a progressive neurological deficit, which is one of the criteria for the procedure found in the ODG. Claimant presented no expert evidence supported by evidence-based medicine in the MCCH, but, rather, relied upon her own lay testimony about her worsening physical symptoms. The HO noted that he could not conclude that there had been a "progressive worsening of neurological deficit . . . without a persuasive expert opinion to this effect." The HO thus upheld the IRO decision denying the requested procedure. M6-10-23457-01.

EBM Proffered in MCCH Must Be Supported By Expert Analysis
 The decision of the IRO denied the request of Claimant's treating doctor for a right thoracic neurotomy at T5-6 and T7-8 for Claimant's compensable injury. The ODG does not address neurotomy of the thoracic spine, though it does address the procedure to the cervical and lumbar spine. At the MCCH, Claimant introduced an abstract from a professional journal about the effectiveness of the procedure. However, Claimant failed to offer analysis of the article from a qualified expert to show the relevance of the contents of the article to the proposed procedure. Based on the evidence presented in the MCCH, the HO upheld the decision of the IRO. M6-10-21853-01.

A medical doctor is not automatically qualified as an expert on every medical question. An unsupported assertion by a doctor is not required to be admitted into evidence. Black v. Food Lion, Inc., 171 F.3rd 308 (5th Cir. 1999). In MCCHs, an opinion by a HCP, timely exchanged, will be admitted into evidence pursuant to §410.165(b), but it is possible it will be given no weight by the HO if it is properly objected to based upon the relevancy factors set out by the Courts in the following cases: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786, 2795 (1993); E.I. Du Pont De Nemours and Company, Inc. v. Robinson, 923 S.W.2d 549 (Tex.1995).

As set out in Daubert, Robinson, and Black, when weighing medical evidence, the finder of fact must first determine whether the doctor giving the medical opinion is qualified to offer it, and further must determine whether the opinion is relevant to the issues in the case at hand, and whether the opinion is based upon a reliable foundation. An expert's bald assurance of validity is not enough. See Black, Robinson. When determining reliability, the HO must consider appropriate factors to ensure the evidence is reliable. Examples of such factors are:

  1. general acceptance of the theory and technique by the relevant scientific community;
  2. the expert's qualifications;
  3. the existence of literature supporting or rejecting the theory;
  4. the technique's potential rate of error;
  5. the availability of other experts to test and evaluate the technique;
  6. the clarity with which the theory or technique can be explained to the trial court; and
  7. 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).

Admissibility of Expert Evidence

Expert Witness Must Be Qualified
Upon proper objection to an expert's qualifications, when weighing medical evidence, the HO must first determine whether the doctor giving the expert opinion is qualified to offer it. A party must object to expert evidence before trial or when it is offered, not before trial and when it is offered. Piro v. Sarofim 80 S.W.3d 717 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409, 41 Tex. Sup. Ct. J. 683 (Tex. 1998) ("To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered."). KMG Kanal-Gruppe Deutschland GMBH & Co KG v. Davis, 175 S.W.3d 379 (Tex. App.-Houston 2005, no pet.).

Expert Witness Testimony Must Be Relevant
If the HO determines that the expert is qualified to give the opinion, the HO must next determine whether the opinion is relevant to the issues in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786, 2795 (1993).

Expert Witness Testimony Must Be Reliable
When determining reliability, the hearing officer must consider appropriate factors to ensure the evidence is reliable. Examples of such factors are: (1) general acceptance of the theory and technique by the relevant scientific community; (2) the expert's qualifications; (3) the existence of literature supporting or rejecting the theory; (4) the technique's potential rate of error; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the theory or technique can be explained to the trial court; and (7) 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). The fact that an expert's opinion was offered, without objection to the reliability of the opinion, adds nothing to its probative force. When weighing the opinion the HO must always determine the reliability of that opinion, even if there has been no objection. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 713 (Tex. 1997) (underlying data evaluated in determining if the opinion itself is reliable).

Weighing Expert Evidence
When conflicting qualified EBM opinions are presented at a MCCH as to whether the proposed treatment is reasonably required, it is up to the HO to determine which is more persuasive. These proceedings are covered by Section 410 of the Labor Code and the associated Rules. The HO is the sole judge of the weight and credibility to be given to the evidence. §410.165. An expert's self- proclaimed accuracy is insufficient. Kumho Tire Co v Carmichael, 526 U.S. 137, 118 S. Ct. 2339, 141 L. Ed.2d 711, (1998).

Official Disability Guidelines (ODG)
The Division has adopted the ODG as the official treatment guidelines effective for health care provided on and after May 1, 2007. Rule 137.100(a).

Prior to the Effective Date (i.e., Before May 1, 2007) of ODG Adoption, Appealing Party Must Establish the Necessity of Proposed Treatment through EBM if EBM Exists
 In this retrospective necessity dispute, the IRO decision held that Claimant's additional work hardening / conditioning on several dates of service prior to May 1, 2007 was "not reasonable or medically necessary." The IRO decision noted that, at the time of the dates of service, "there were no applicable ODG Guidelines." In the MCCH, Petitioner did not present EBM to overcome the decision of the IRO. The HO wrote that, in the absence of applicable ODG guidelines, Petitioner would have to establish the necessity of the medical treatment at issue based on EBM. Since no EBM was offered to overcome the IRO decision, the HO upheld the IRO denial. M5-0811279-01.

The IRO reviewer approved 20 sessions of chronic pain management as necessary treatment for Claimant's compensable injury. The decision of the IRO predated the May 1, 2007 effective date of the ODG adoption. The IRO decision was based on evidence-based practice guidelines from the American College of Occupational and Environmental Medicine (ACOEM). At the MCCH, Carrier presented testimony from a qualified expert who reviewed Claimant's medical records and referenced the ACOEM practice guidelines as support for her conclusion that the proposed treatment was not medically necessary. Though Claimant also produced testimony from an expert, the HO found the testimony of Carrier's expert to be more persuasive. Consequently, the HO reversed the decision of the IRO and found that 20 sessions of chronic pain management was not health care reasonably required for Claimant's compensable injury. M2-06-1106-01.

Health care provided in accordance with the ODG is presumed to be reasonable under Section 413.017, and is also presumed to be health care reasonably required as defined by Section 401.011(22-a). Rule 137.100(c). Thus, the focus of any health care dispute starts with the health care set out in the ODG. However, the omission of a particular procedure or treatment from the ODG does not mean that the procedure or treatment is not recommended by the ODG or that the procedure or treatment can never be authorized. See MCCH 09015. Where the ODG does not address proposed health care, the appealing party must establish the medical necessity of the health care by a preponderance of evidence-based medical evidence or, if evidence-based medicine does not exist, through generally accepted standards of medical practice recognized in the medical community. See MCCH 09021 and MCCH 11127.

The IRO should apply the ODG when issuing its decision and if it does not, the IRO must specify its reasoning for not applying the ODG in its decision. Section 413.031(e-1); Rule 133.308(p)(1)(G)(i).

IRO Decision Inconsistent with ODG Overturned by the HO
 The decision of the IRO held that Claimant was entitled to a lumbar discogram at L2/3, L3/4, L4/5, and L5/S1. The ODG does not recommend discography based on studies indicating that the procedure is of limited diagnostic value. Carrier produced testimony from a qualified expert in the MCCH that discography has been shown to be of little benefit as a diagnostic tool according to recent studies, which superseded the older studies referenced in the North American Spine Society's Physician's Statement of Provocative Discography relied upon by the IRO reviewer. The HO found the Carrier expert's testimony to be supported by the EBM found in the ODG. The HO thus overturned the decision of the IRO and found that Claimant was not entitled to the requested procedure. M6-09-16849-01.

While health care provided in accordance with the ODG is presumed to be reasonably required, that presumption can be overcome by a contrary opinion from a qualified expert that is based upon EBM, if EBM exists. MCCH 10016.

Expert Evidence Found to be More Persuasive than the ODG
 The IRO denied Claimant's request for total right knee arthroplasty solely due to the fact that Claimant's Body Mass Index (BMI) was over 35 and, thus, did not meet all of the patient selection criteria for the procedure found in the ODG. At the MCCH, Claimant provided an evidence-based medical opinion from a qualified expert in support of the proposition that BMI alone should not serve as a justification for denying Claimant the proposed surgery. The expert, a board-certified orthopedic surgeon, testified in the MCCH and cited an article from a scientific journal to support his position that the BMI threshold at issue was "artificial." Based on the evidence presented in the MCCH, the HO found that Claimant overcame the decision of the IRO by a preponderance of the evidence-based medical evidence. The IRO denial of the proposed procedure was therefore reversed. M6-09-19331-01.

The IRO denied Claimant's request for CT myelogram of the lumbar spine with flexion and extension views, to rule out pseudoarthrosis and to assess adjacent level for Claimant's compensable injury. The procedure had been recommended by Claimant's surgeon to ascertain what was wrong with Claimant's back as the result of a prior lumbar fusion. The decision of the IRO was based largely on the fact that Claimant was found not to meet the ODG criteria for CT myelography. In the MCCH, Claimant presented testimony from a qualified expert, the recommending surgeon, to establish that Claimant complied with the ODG criteria for the procedure. The expert's testimony was supported by EBM. In particular, the surgeon testified that the ODG recommends CT myelography where an MRI is unavailable, contraindicated (e.g., metallic foreign body), or inconclusive. The surgeon's testimony in the MCCH indicated that an MRI would be contraindicated in Claimant's case because of the existence of metal hardware implanted in Claimant's back during the earlier fusion. The surgeon also testified that he documented neurological findings consistent with myelopathy, which is another of the indications in the ODG for the procedure. The HO found the evidence presented in the MCCH by Claimant to be persuasive and the adverse decision of the IRO was reversed. M6-09-19256-01.

HCP, an orthopedic surgeon, requested that IE undergo a lumbar discogram with post CT scan prior to surgery. The IRO denied HCP's request for the procedure on the basis that IE was not an appropriate candidate for fusion surgery. The ODG also does not recommend lumbar discography. HCP appealed the IRO decision to an MCCH. At the hearing, he provided his expert testimony in support of the necessity of the procedure, which he was requesting in order to confirm a pain generator at L4-5 of IE's lumbar spine and to determine whether IE should undergo lumbar fusion surgery. HCP presented evidence of, and referenced in his testimony, articles from recognized medical journals, including two articles cited in the ODG, to support his position that discography was diagnostically useful and that prior problems with the procedure had been eliminated with improvements in technique and technology. The HO found that a preponderance of evidence-based medical evidence was contrary to the IRO decision and, thus, a lumbar discogram with post CT scan was health care reasonably required for Claimant's compensable injury. M6-10-25805-01.

The ODG is not, however, necessarily the end point in an inquiry into the medical necessity of proposed health care. It is important to note that the ODG constitute "guidelines, not inflexible proscriptions, and they should not be used as sole evidence for an absolute standard of care" (See ODG Appendix D - "Documenting Exceptions to the Guidelines"). ODG Appendix D also provides that the guidelines can assist clinicians in decision making for the care of specific conditions, as well as to assist payors in making reimbursement decisions, but they "cannot take into account the uniqueness of each patient's clinical circumstances." For example, a Claimant whose request for proposed treatment is denied by the IRO based on the ODG may prevail if he or she is found to fall under an exception to the guidelines due to co-morbid conditions or other individual circumstances.

Claimant Prevails by Showing that She Fell under an Exception to the ODG Criteria due to Co-Morbid Condition
 The IRO denied Claimant's request for additional physical therapy for her compensable neck injury. The ODG only provided for 9 sessions of physical therapy over a 4-week period for regional neck pain and Claimant had already undergone 12 physical therapy sessions. The evidence presented in the MCCH included a report from Claimant's treating doctor that, though Claimant had undergone prior physical therapy, it was not the "active" physical therapy as found in the ODG. In particular, the evidence revealed that Claimant received heat treatment, ice packs and electrical stimulation, but only limited physical exercise due to an unrelated heart condition. HO found based on the evidence that the requested sessions of physical therapy were health care reasonably required for Claimant's compensable injury and the decision of the IRO was reversed. M6-07-9194-01.

Legal Presumptions
Health care provided in accordance with the ODG is presumed to be reasonably required. By way of analogy, the Supreme Court of Texas has stated the following regarding presumptions:

The presumption is subject to the same rules governing presumptions generally. Its effect is to shift the burden of producing evidence to the party against whom it operates. Combined Am. Ins. Co. v. Blanton, 163 Tex. 225, 353 S.W.2d 847, 849 (Tex. 1962); Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 767-768 (Tex. 1940); ROY R. RAY, TEXAS LAW OF EVIDENCE § 53, at 76-77 (3d ed. 1980); 9 WIGMORE, EVIDENCE § 2491 (Chadbourn rev. 1981). Once that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears and "is not to be weighed or treated as evidence." Blanton, 353 S.W.2d at 849. The evidence on the issue is then evaluated as it would be in any other case. RAY, supra, at 77-82. The presumption has no effect on the burden of persuasion. Id. The facts upon which the presumption was based remain in evidence, of course, and will support any inferences that may be reasonably drawn from them. Sudduth v. Commonwealth County Mut. Ins. Co., 454 S.W.2d 196, 198 (Tex. 1970), citing WIGMORE, § 2491. General Motors Corporation v. Saenz, 873 S.W.2d 353; 1993; 37 Tex. Sup. J. 176.

Because the IRO doctor is unidentified, that doctor's qualifications are unknown and the doctor is not subject to questioning regarding how he or she came to a conclusion. A party supporting an IRO opinion in evidence may need another identifiable, qualified doctor's opinion, which is based on EBM in accordance with §401.011(22-a), in evidence. This is so because, in the face of a valid objection to the validity of the IRO's opinion, and once the opposing party presents an identifiable, qualified doctor's opinion which is based on EBM and is contrary to the IRO opinion, the IRO's opinion may be given little weight. There is no way to establish that the IRO opinion meets the validity requirements set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786, 2795 (1993), and E.I. Du Pont De Nemours and Company, Inc. v. Robinson, 923 S.W.2d 549 (Tex.1995).

Preauthorization of Health Care under Rule 134.600
Rule 134.600(p) contains 14 categories of non-emergency health care that require preauthorization.

Proposed Health Care Not Subject to Preauthorization Also Not Subject to IRO Necessity Review
 The decision of the IRO denied Claimant's request for a pain management evaluation. The hearing officer found that a referral for a pain management evaluation is not subject to preauthorization under Rule 134.600(p). Consequently, the hearing officer set aside the IRO decision and found that the proposed evaluation was not subject to the IRO review process for determining medical necessity. The hearing officer noted, however, that, if the pain management evaluation led to a request for specific treatment, then that treatment may be subject to preauthorization. M6-09-15687-01.

Pursuant to Rule 134.600(l), Carrier shall not withdraw a preauthorization or concurrent review approval once issued.

Carrier initially denied the request of Claimant's HCP for bilateral L3 through S1 facet medial nerve blocks, but, on reconsideration, Carrier approved the requested procedure. Though Carrier approved the procedure, Claimant's HCP requested review by an IRO. The IRO denied the requested treatment. The HO dismissed the IRO decision pursuant to Rule 134.600(l) and found that Carrier's approval of the requested procedure became final. M6-08-12564-01.

Appeal to a DWC MCCH on Health Care Reasonably Required (22-a)

Jurisdiction
DWC does not have jurisdiction over any network medical necessity cases. 2

Dismissal of MCCH on Prospective/Concurrent Necessity Dispute Due to Network Claim
Claimant requested an MCCH to determine the necessity of caudal epidural lysis of adhesions under fluoroscopy with intravenous sedation as health care reasonably required for her compensable injury. The HO found that Claimant was receiving treatment for her compensable injury through a network. Consequently, as this was a network claim, the HO found that DWC did not have jurisdiction to hear the case. See 28 TAC §133.308(t)(1) and 28 TAC §133.308(t)(2), addressing non-network and network appeals, respectively, of IRO decisions. M6-08-11167-01.

Network medical necessity disputes are governed by Texas Insurance Code, Title 8, Chpt.1305. 3 If an issue arises as to whether the claimant is or is not in a network, that issue must be resolved prior to determining the medical necessity dispute. Resolution of whether the claimant has or has not received notification from his/her employer that health care services are being provided in a Texas Insurance Code, Title 8, Chapter 1305 network must go through the Workers' Compensation Health Care Network and the Texas Department of Insurance's complaint resolution process. A HO is not authorized to make that determination. Appeals Panel Decision Manual (P00); APD 080416-s.

Pursuant to Texas Labor Code §413.0311(a)(2), DWC has jurisdiction over appeals of an independent review organization (IRO) decision regarding determination of the retrospective medical necessity for a health care service for which the amount billed does not exceed $3,000.00. 4 The State Office of Administrative Hearings (SOAH) has jurisdiction to decide retrospective medical necessity disputes where the amount billed is in excess of $3,000.00. 5 DWC has jurisdiction to decide appeals of an IRO decision regarding determination of the concurrent or prospective medical necessity for a health care service. See Texas Labor Code §413.0311(a)(3). 6

Jurisdiction of SOAH or DWC Determined by Character/Posture of the Review (i.e., Concurrent / Prospective or Retrospective) at Time of IRO Decision
 The IRO found Claimant to be entitled to chronic pain management for 5 times per week for 2 weeks. The IRO decision was upheld by the HO. Respondent and Claimant argued at the contested case hearing that SOAH should have jurisdiction over the appeal rather than DWC because some of the treatment had been provided following the IRO decision and the treatment cost was estimated to be in excess of $3,000.00. The HO held that DWC had jurisdiction over the dispute pursuant to Texas Labor Code §413.0311 because the treatment at issue had not been performed at the time of the IRO review. M6-10-22996-01.

Timeliness of Request for Appeal to a MCCH
A written appeal must be filed with the Division's Chief Clerk no later than the 20th day after the date the IRO decision is sent to the appealing party. §133.308(t)(1)(B)(i). See MCCH 11123.

Denial of Untimely Appeal of IRO Decision
 The decision of the IRO denied Claimant's request for Radiofrequency Thermocoagulation of the facet medial nerve at L3-S1. The Division's computer records indicated that Claimant contacted a Division Field Office 2 days after the IRO decision was mailed. The records also indicated that Claimant apprised a Division employee that he had received notification of the IRO decision and wanted to appeal. Claimant was advised that a DWC Form-045A ("Request for a Medical Contested Case or SOAH Hearing") had to be completed and sent to Austin to appeal the decision of the IRO. A DWC Form-045A form was mailed to Claimant. Claimant received the DWC form. Claimant argued in the MCCH that he received the DWC Form-045A from the Division and mailed the form to the Division. The evidence presented in the hearing indicated that no form was received from Claimant. Claimant later submitted a DWC Form-045A that was received by the Division, but beyond the 20-day deadline. Since Claimant's written appeal was not filed with the Division within the required time frame in Division Rule 133.308(t)(1)(B)(i), Claimant's appeal was denied. M6-09-16744-01.

Requests that are timely submitted to a Division location other than the Division's Chief Clerk, such as a local field office of the Division, will be considered timely filed and forwarded to the Chief Clerk for processing. §133.308(t)(1)(B)(i).

Timeliness of Request for Appeal and Subject Matter Jurisdiction
An assertion, or finding, that an appeal is untimely under Rule 133.308 does not deprive the Division of subject matter jurisdiction to decide the disputed issue. The untimeliness of the appeal is a defense to the IC's ultimate liability for the services or bill in question. M6-09-13618-01, citing Igal v. Brightstar Info. Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000) and City of Seabrook v. Port of Houston Auth., 199 S.W.3d 403 (Tex. App.-Houston [1st Dist.] 2006, pet. abated).

2 Subject to amendments to Texas Insurance Code Sections 1305.355(e), (f), and (g) and the addition of Texas Insurance Code Section 1305.356 as a result of House Bill 2605 of the 82nd Regular Session of the Texas Legislature in 2011. These statutory amendments and addition to the Insurance Code went into effect on September 1, 2011, but changes affecting jurisdiction over network medical necessity disputes go into effect for IRO reviews under Texas Insurance Code Section 1305.355 that are conducted on or after June 1, 2012.
3 Ibid. at 2.
4Subject to amendment to Texas Labor Code Section 413.0311 as a result of House Bill 2605 of the 82nd Regular Session of the Texas Legislature in 2011. This statutory change went into effect on September 1, 2011, but jurisdictional changes impacting medical necessity disputes go into effect for IRO reviews that are conducted on or after June 1, 2012.
5 Ibid. at 4.
6 Ibid. at 4.

Last updated: 9/7/2022