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Appeals Panel Decision Manual - Spinal Issues

Acronym List

Spinal Surgery. (S01)
Timely Request for Spinal Surgery. (S02)

Spinal Surgery. (S01) [Cross reference: Timely Request for Spinal Surgery (S02)]

SS must be preauthorized except in emergency situations or when SS is ordered by the Commissioner. Sections 134.600 (c) and (f). The request for preauthorization shall be sent to the IC by telephone, fax, or electronic transmission and include the information listed in Section 134.600(f). If the IC denies preauthorization for SS, the requestor or IW may request the IC to reconsider the initial denial. Section 134.600(o). The timeline and requirements for preauthorization requests and requests for reconsideration of the IC's decision on preauthorization requests are set forth in Section 134.600.

If the IC again denies preauthorization for SS, the requestor may request an independent review by an IRO. Section 133.308(g) lists the parties that may request an independent review. The request for independent review must be filed with the IC that issued the denial or the IC's URA that issued the denial no later than the 45th calendar day after receipt of the reconsideration denial in the form and manner prescribed by the Department. Sections 133.308(h) and (i). The IC shall notify the Department of a request for independent review within one working day from the date the IC or its URA receives the request. Section 133.308(i). The Department reviews the request for IRO review, assigns an IRO, and notifies the parties about the IRO assignment. Section 133.308(k).

IRO Decision. For life-threatening conditions, the IRO renders a decision no later than eight days after the IRO receipt of the dispute. Otherwise, the IRO renders a decision on the SS dispute no later than the 20th day after the IRO receipt of the dispute. Section 133.308(o) (1) and (2). The IRO decision is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. Section 133.308(t).

Appealing The IRO Decision, Non-Network. A party may appeal the IRO decision by filing a written appeal requesting a CCH within 20 days after the date the IRO decision is sent to the appealing party. The appeal must be filed in compliance with Division rules, and a copy of the appeal shall be delivered to all other parties involved in the dispute. Section 133.308(u)(1). A party wishing to appeal the CCH decision and order shall file a written appeal with the AP within the timeframe and requirements set forth in Section 143.3(a). Section 133.308(u)(3).

Evidentiary Standard Of Evidence-Based Medicine. The party appealing the IRO decision has the burden of overcoming the decision by a preponderance of evidence-based medical evidence. Section 133.308(t). Evidence-based medicine is defined by Section 401.011(18-a).

Party Failed To Present Evidence-Based Medicine. The IRO decision by an orthopedic surgeon upheld the IC's denial of the requested surgical procedure which included a fusion of L4-5 and L5-S1. The IRO stated that the IW had failed back syndrome and listed the factors which indicated a poor result for the requested surgery, including multiple prior low back surgeries, previous failure to achieve even six months of relief, and surgery within the compensation system. The IRO used the ODG published by the Work Loss Data Institute for its screening criteria. The TD testified that the proposed surgery would alleviate the IW's back and leg pain and that the IW had vertical instability. The TD explained what he meant by vertical instability but did not cite any authority for the concept. Another orthopedic surgeon testified that he was unaware of any article in English which defines the parameters of vertical instability and that such concept is investigational and without scientific basis. 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. Section 401.011(22-a) defines "health care reasonably required" as health care that is clinically appropriate and considered effective for the IW's injury and provided in accordance with best practices consistent with: (A) evidence-based medicine; or (B) if that evidence is not available, generally accepted standards of medical practice recognized in the medical community. Section 401.011(18-a) defines "evidence-based medicine" as 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 about the care of individual patients. The Division has adopted the ODG as its treatment guidelines. Section 137.100. The HO found that the SS is medically necessary treatment for the IW's injury and determined that the preponderance of the evidence is contrary to the decision of the IRO. The AP determined that the HO's decision was against the great weight and preponderance of the evidence. The AP held that the IW failed to present evidence consistent with the requirements of Section 401.011(22-a) to establish that the preponderance of the evidence is contrary to the decision of the IRO. The AP reversed the HO's decision and rendered a decision that the preponderance of the evidence is not contrary to the decision of the IRO. APD 080812-s.

Procedures Considered SS. An Intra-Discal Electro Thermal (IDET) procedure is a procedure which is performed on the spine, and the medical literature supports the proposition that it is considered SS. APD 011557.

Removal of hardware, which was put in place during a previous spinal surgical procedure, is SS. APD 970638.

Surgery Performed Before Preauthorization Process Completed. If the surgery, which has not been preauthorized by the IC, is performed before an IRO decision is requested, there can be no preauthorization of SS. If SS occurs before the IRO is appointed, there is no authority to continue the SS preauthorization process, as the issue of the necessity for SS is no longer prospective. APD 052063-s.

Timely Request For Spinal Surgery. (S02) [Cross reference: Spinal Surgery (S01)]

SS must be preauthorized except in emergency situations or when SS is ordered by the Commissioner. Sections 134.600(c) and (f). If the IC denies preauthorization for SS, the requestor or IW may request the IC to reconsider the initial denial. Section 134.600(o)(2). The timeline and requirements for preauthorization requests and requests for reconsideration of the IC's decision on preauthorization requests are set forth in Section 134.600.

If the IC again denies preauthorization for SS, the requestor may request an independent review by an IRO. The request for independent review must be filed with the IC that issued the denial or the IC's URA that issued the denial no later than the 45th calendar day after receipt of the reconsideration denial in the form and manner prescribed by the Department. Sections 133.308(h) and (i). The Department may dismiss an untimely request for medical necessity dispute resolution for SS. Section 133.308(j)(5).

APDs Prior To Current Section 133.308 (Amended To Be Effective May 25, 2008). Please note that the following APDs were decided prior to current Section 133.308.

The IC denied the IW's preauthorization request for SS as well as the subsequent reconsideration. The IW filed a request for MDR more than 45 days after reconsideration was denied. MDR appointed an IRO and SS was recommended. The AP found that because the request for MDR was not timely made, the IRO was not properly appointed and the IC was not liable for medical benefits for SS. APD 042926-s.

The IW's treating physician requested preauthorization for SS which was denied by the IC. A request for reconsideration was also denied by the IC. The physician's request for MDR and an IRO was dismissed as untimely because it was not made within 45 days of the denial of the request for reconsideration. The IW then made a request for independent review and an IRO for the same surgical procedure. A request for MDR and an IRO was not made within the 45-day deadline. The IC objected; however, the Medical Review Division assigned an IRO. The AP held that the IRO should not have been appointed and the IW had waived the right to MDR for SS by failing to file a request for independent review within 45 days after the IC denied approval of the reconsideration. APD 042573-s.



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