DECISION AND ORDER

American Home Assurance Company (AHAC or Carrier) appealed the decision by an Independent Review Organization (IRO) to grant preauthorization for Claimant to receive an EMG of the upper extremities. AHAC disputes the IRO’s conclusion that these services are medically necessary. This decision agrees with the IRO and finds that the requested procedure in dispute is medically reasonable and necessary and should have been preauthorized. Therefore, the Administrative Law Judge (ALJ) orders AHAC to authorize the requested procedure.

I.JURISDICTION & HEARING

There were no challenges to notice or jurisdiction, and those matters are set forth in the findings of fact and conclusions of law without further discussion here.

ALJ Penny A. Wilkov conducted a hearing in this case on February 4, 2004, at the State Office of Administrative Hearings (SOAH), William P. Clements State Office Building, 300 West 15th Street, Austin, Texas. Attorney Dan C. Kelly appeared on behalf of AHAC. Respondent, Jacob Rosenstein, M.D., appeared by telephone. One witness, Respondent, testified at the hearing and one exhibit, consisting of one-hundred-ninety-three pages, was admitted into evidence. The hearing concluded and the record closed the same day.

II.DISCUSSION

A. Background

Claimant sustained a compensable injury on February 13, 1998, when she was struck on the head by a metal shelf while climbing down a ladder at her job. Claimant has not returned to work since the date of the accident.

Claimant has been generally diagnosed with neck, shoulder, and arm pain consistent with bilateral cervical radiculopathy and partially calcified disk protrusions of C4-C7 with spinal cord impingement.^[1] The medical records indicate that she has been under the care of Charles Marable, M.D., and Jacob Rosenstein, M.D., both of whom have reported that the Claimant has complained of incessant pain to the neck, shoulder, and arms within a subjective level of pain ranging from eight to ten on a scale of one to ten.^[2] Recently she has reported experiencing symptoms which include increased frequency of numbness and tingling in the upper extremities, headaches, and pain-related difficulty sleeping.^[3]

B. Medical Necessity of the EMG Procedure

Carrier

The Carrier did not call any witnesses to testify but instead introduced into evidence a compilation of medical evaluations, assessments, follow-ups, reviews, and test results; all of which were considered as part of the IRO’s decision process.

Carrier argues that the injury occurred in 1998 and that the claimant has had multiple diagnostic exams through the years-all to no avail. The carrier points to numerous documents that indicate that Claimant is not a surgical candidate^[4] and therefore would not ultimately benefit from further diagnostic tests.

Carrier further contends that Claimant has had many instances of testing previously performed,^[5] including the disputed procedure, an EMG,^[6] and a repeat of a similar procedure would not produce different results. For these reasons, along with the five-year history of the claimant’s complaints of persistent pain, the Carrier argues that the EMG is not medically reasonable or necessary and should not be preauthorized.

Respondent, Dr. Jacob Rosenstein

Dr. Rosenstein testified for Claimant by telephone. He is a medical doctor in Arlington, Texas and a Diplomate of the American Board of Neurological Surgery.^[7] He has been the treating physician for Claimant, since September 1999. Dr. Rosenstein testified that Claimant has consistently reported experiencing neck pain, shoulder pain, and arm pain which he feels is likely caused by a partially calcified disc protrusion at C4-5, C5-6, and C6-7, which was confirmed by the September 13, 2001, myelogram.^[8] The condition has resulted in numbness in her hand, which could be symptomatic of either a spinal cord compression or carpal tunnel syndrome or both, a phenomenon known as Adouble crush.

Dr. Rosenstein contends that Claimant can not be ruled out as a surgical candidate,^[9] and a current EMG is an important diagnostic tool based on her apparently deteriorating condition of numbness and pain.^[10] He points out that the last EMG performed on Claimant was in 1998, and Claimant can benefit from both a technologically and diagnostically current EMG. Furthermore, he testified that a five-year-old EMG test would not provide worthwhile information on the claimant’s current condition, nor could it be relied on as a diagnostic tool.

In Dr. Rosenstein’s view, the requested services are medically reasonable and necessary and should be approved.

IRO

The IRO’s October 20, 2003, decision states:

Although Ms. Ramirez has had nerve conduction studies and somatosensory of evoked potentials (SSEP) in 1998 and 1999, there is no indication that she has had needle electrode studies. Nerve conduction studies and SSEP’s are totally insufficient for diagnosis of radiculopathy and a full EMG is definitely warranted.

Analysis

Claimant sustained an injury over five years ago that has been a source of persistent pain, which the Claimant describes as constant and sharp with a medium to high pain index, and which causes her to experience headaches, sleeplessness, and numbness.^[11]

Under the workers= compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. 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. Labor Code Ann. ‘ 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Labor Code ‘ 401.011(19). Under this standard, Claimant is entitled to diagnostic treatment for her physical problems, if it will promote recovery.

Based on the evidence and testimony, and particularly the concurrence of the treating physicians and the IRO doctor that an EMG of the upper extremities is reasonable and necessary for Claimant for diagnosis of radiculopathy related to her compensable injury, it is reasonable to conclude that the requested diagnostic device could ultimately lead to the promotion of Claimant’s recovery. Further, Carrier has not offered any evidence that such a testing is not appropriate for Claimant. Therefore, the ALJ concludes the proposed EMG of the upper extremities should be preauthorized.

III.FINDINGS OF FACT

1. Claimant sustained a compensable injury on February 13, 1998, when she was struck on the head by a metal shelf while climbing down a ladder at her job. Claimant has not returned to work since the date of the accident.
2. Claimant has been generally diagnosed with neck, shoulder, and arm pain consistent with bilateral cervical radiculopathy and partially calcified disk protrusions of C4-C7 with spinal cord impingement.
3. Jacob Rosenstein, M.D., requested preauthorization for Claimant to undergo an EMG of the upper extremities.
4. American Home Assurance Company, the Carrier, denied Dr. Rosenstein’s request.
5. Dr. Rosenstein requested medical dispute resolution.
6. The Independent Review Organization (IRO) granted Dr. Rosenstein’s request for preauthorization.
7. Carrier requested a hearing before the State Office of Administrative Hearings and requested denial of preauthorization for the EMG of the upper extremities.
8. Both parties received not less than 10 days notice of the time, place, and nature of the hearing; the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
9. Both parties were allowed to respond and present evidence and argument on each issue involved in the case.
10. Claimant’s symptoms from her injury include increased frequency of back, neck, and shoulder pain, numbness and tingling in the upper extremities, headaches, and difficulty sleeping related to the pain.
11. Claimant’s injury has resulted in numbness in her hand, which could be symptomatic of either a spinal cord compression or carpal tunnel syndrome or both.
12. A current EMG is an important diagnostic tool for revealing the cause of Claimant’s deteriorating condition of numbness and pain.
13. The last EMG performed on Claimant was in 1998, and Claimant can benefit from both a technologically and diagnostically current EMG.
14. An EMG of the upper extremities is medically reasonable and necessary.

IV. CONCLUSIONS OF LAW

1. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing, including the authority to issue a decision and order. Tex. Labor Code Ann. ‘413.031(k).
2. Both parties received proper and timely notice of the hearing. Tex. Gov=t Code Ann. ”2001.051 and 2001.052.
3. Carrier has the burden of proof by a preponderance of the evidence.
4. Carrier did not establish by a preponderance of the evidence that an EMG of the upper extremity is not medically reasonable or necessary for the proper treatment of Claimant Tex. Labor Code Ann. ”401.011(19) and 408.021.

5.The EMG of the upper extremities is medically necessary and should be preauthorized.

ORDER

IT IS, THEREFORE, ORDERED that preauthorization is hereby GRANTED for an EMG of the upper extremities as requested by Jacob Rosenstein, M.D., on behalf of Claimant.

Signed February 11, 2004.

PENNY A. WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Petitioner’s Exhibit 1, pages 22-23, dated June 4, 2003.↑
2. Petitioner’s Exhibit 1, page 22 (Jacob Rosenstein, M.D.) and page 110 (Charles Marable, M.D.).↑
3. Petitioner’s Exhibit 1, page 25 (July 14, 2003 follow up, examination, and assessment by Jacob Rosenstein, M.D.).↑
4. Petitioner’s Exhibit 1, page 41 (letter from J. John Stasikowski, M.D. of August 15, 2001), page 73 (letter from Ziroc Services dated December 23, 2002), page 135 (letter from Mark J. Cwikla, M.D. dated February 22, 1998), and page 158 (UniMed Direct, LLC letter of August 12, 2003).↑
5. Petitioner’s Exhibit 1, page 78 (a CT of the cervical spine performed on or about February 2, 2000), page 112 (a cervical myelogram performed on or about June 13, 2001), and page 135 (an MRI, CT scan, Myelogram, and Post myelogram CT performed on or about February 22, 1999).↑
6. Petitioner’s Exhibit 1, page 121 (an EMG was performed on or about June 23, 1998).↑
7. Petitioner’s Exhibit 1, page 2.↑
8. Petitioner’s Exhibit 1, page 37.↑
9. Petitioner’s Exhibit 1, pge 8. Dr. Rosenstein states, (The patient) wants to proceed with surgery as the pain is proving to be intractable despite conservative therapy. She was referred to Dr. Slaughter for psychometric testing to see if she is a surgical candidate. She has been cleared through that office. Also, see page 20, where Dr. Marable states that ARosenstein and I both feel she needs surgery.↑
10. Petitioner’s Exhibit 1, page 25.↑
11. See Petitioner’s Exhibit 1, pages 4-16.↑