DECISION AND ORDER

Pedro Nosnick, M.D., (Petitioner) appealed the decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) to adopt the decision of its designee, an independent review organization (IRO), in MDR No. M5-04-2181-01. The decision upheld American Casualty Company of Reading, PA.’s (Carrier) denial of reimbursement for a neurological evaluation and diagnostic tests provided to a workers’ compensation claimant (Claimant) on the basis that the services were not medically necessary healthcare. This decision finds that Petitioner should be reimbursed because the services and tests provided Claimant were medically necessary healthcare.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter convened February 7, 2005, at the State Office of Administrative Hearings, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. The record also closed that date. Petitioner represented himself. Attorney Courtney Leech represented Carrier. Commission Staff did not participate in the hearing.

II. DISCUSSION

A. Background Facts

In ___, Claimant sustained injuries to her back and hand injury that were compensable under the Texas Workers’ Compensation Act (Act). At the time of the compensable injury, Carrier was the workers’ compensation insurer for Claimant’s employer. The injury left Claimant with low back pain and numbness in her legs.^[1]

Ten weeks post-injury, Claimant continued to complain of low back pain and numbness in her legs. Her treating physician, chiropractor Francis Hanna, referred her to Petitioner for a neurological evaluation. As part of the evaluation, Petitioner performed EMG and NCV diagnostic

tests on July 22, 2003. Carrier denied reimbursement for Petitioner’s services, citing to a Required Medical Examination (RME) dated July 15, 2003, that found Claimant’s injuries had resolved and placed her at maximum medical improvement (MMI) on that date. Petitioner timely appealed Carrier’s denial to the IRO and subsequently filed a timely appeal of the decision issued by the MRD.

C. Legal Standards

Petitioner has the burden of proof in this proceeding. 28 TEX. ADMIN. CODE (TAC) §§ 148.21(h) and (i); 1 TAC § 155.41. Pursuant to the Act, an employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. § 408.021(a). Health care includes all reasonable and necessary medical services including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).

D. Petitioner’s Evidence

Petitioner testified that Dr. Hanna referred Claimant for a neurological evaluation because her low back pain had not resolved after ten weeks, as should have been the case if she had only strained or sprained her back. The neurological evaluation and associated EMG and NCV testing were performed to rule out nerve root involvement as a pain generator.

Petitioner noted that Claimant described her pain as numbness and tingling (paresthesia)^[2] in the low back, especially the tailbone, and legs. She used a cushion for sitting and was taking up to 800 mg. of ibuprofen two to three times a day for pain relief.

Upon examining Claimant on July 22, 2003, Petitioner found her straight leg raise positive at 40 degrees on the left and 55 degrees on the right. The sensory examination found some deficits in the left leg below the knee. Because Claimant had back pain, paresthesia, and radicular symptoms in her legs, Petitioner felt a EMG and NCV were needed to rule out or confirm nerve root involvement, particularly because her MRI showed a disc bulge at L4-S1. The EMG and NCV tests were normal.

E. Carrier’s Evidence

Carrier introduced the RME report by Gary Martin, D.C., a chiropractor specializing in neurology, dated July 15, 2003. At the time of his examination, Dr. Martin found Claimant’s hand injury was resolving but she still complained of stiffness and pain in her sacrum, exacerbated by sitting, and numbness down her legs. He reviewed an MRI that revealed a broad-based bulge at L4-S1 and degenerative spurring of the sacroiliac joint bilaterally and concluded it revealed only degenerative changes with no acute injury.

On physical examination, Dr. Martin observed Claimant exhibit signs of pain when walking on heels or toe, rising from a sitting position, or squatting but he found her pain exaggerated based on the results of the Waddell’s tests. He noted Claimant raised her legs to 90° on the straight leg raise test. After performing a functional capacity evaluation (FCE), Dr. Martin concluded that the results were invalid due to Claimant’s non-compliance and inconsistent efforts. He diagnosed Claimant’s lumbar strain, elbow contusion, and sacral contusion as having resolved and found her at MMI on that date. He further stated:

Further chiropractic treatment would not be reasonable or necessary as findings are so inconsistent, and the examinee is functioning at a normal level. (Res. Ex. 1, p. 12-14).

Carrier argued that Dr. Martin’s examination established Petitioner’s subsequent services were unnecessary, primarily because Dr. Martin had previously placed Claimant at MMI.

F. Analysis

The issue is this case is whether the neurological evaluation and accompanying EMG and NCV tests were necessary in light of Claimant having been declared at MMI with resolved injuries just a week before the disputed services.

Carrier’s reliance on Dr. Martin’s MMI finding is misplaced. An MMI finding is relevant for determinations of wage, not medical, benefits. Under the Labor Code’s definition, treatment is medically necessary if it tends to relieve the naturally occurring symptoms of the compensable injury. Symptoms that persist or arise after an MMI determination may be treated and that treatment is compensable. Also, there was no showing that Dr. Martin’s MMI finding had any finality. Claimant’s treating doctor had a right to contest the RME finding so it cannot be assumed that Dr. Martin’s determination was accepted or prevailed. Therefore, the fact Dr. Martin had declared Claimant at MMI on July 15, 2003, is not determinative of whether Petitioner’s evaluation on July 22, 2003, was medically necessary.

The reason for the neurological examination was to rule out nerve involvement. If the back and leg injuries had resolved on July 15, 2003, as Dr. Martin claimed, then there would be little reason for Petitioner’s subsequent examination or testing. However, the record established that Claimant’s injuries had not resolved because on July 22, 2003, she still had pain and numbness in the low back and legs. Because Claimant’s main pain symptoms suggested nerve root involvement, the referral to Petitioner for a neurological evaluation was reasonable and necessary.

Petitioner’s and Dr. Martin’s descriptions of Claimant’s subjective complaints were remarkable similarly. Both reported Claimant described low back pain and numbness in the legs. Carrier did not contest that Claimant was reporting pain but relied on Dr. Martin’s finding that the complaints were exaggerated to discount the degree of pain reported. .

Dr. Martin stated that Claimant’s “subjective complaints were out of proportion to objective findings” during the Waddell tests. However, he did not state how the tests results were incongruous with Claimant’s pain reaction (e.g., a statement such as “patient exhibited intense pain in foot when tapped on the arm”). Petitioner pointed out the amount of information obtained from a single examination is too limited to establish conclusively that the patient is exaggerating symptoms.

Based on Dr. Martin’s limited contact with Claimant and the lack detail in his report, his symptom magnification finding was too vague and conclusory to be given much weight.

As Petitioner pointed out, Dr. Martin’s determination that Claimant’s injuries had resolved is inconsistent with his descriptions of reported pain and leg numbness. While Dr. Martin claimed Claimant was functioning at a normal level and her injuries were “resolved”, he incongruously stated that she relied on high doses of ibuprofen several times a day for pain relief. “Resolved” and “normal functioning” imply an absence of pain requiring medication or other treatment. It is hard to agree that pain requiring large daily doses of a pain reliever are sufficiently “resolved” to obviate the need for treatment or constitute “normal functioning.” Dr. Martin’s failure to comment on Claimant’s drug use is odd given that pain relievers should not be needed once an injury has resolved.

In his evaluation, Petitioner performed straight leg raises and sensory testing of Claimant, which confirmed her subjective descriptions of her pain. With this objective confirmation, Petitioner concluded that the EMG and NCV were necessary to establish whether the numbness and paresthesia in the legs was related to nerve damage. Petitioner admitted he could not reconcile the positive straight leg raise test results he obtained with the normal results Dr. Martin reported the week before but surmised Dr. Martin was mistaken, as he was in his conclusion the injuries had resolved. Petitioner’s evidence established his decision to conduct the EMG and NCV tests were based on a reasonable correlation between subjective reports of pain and objective findings regarding sensory reactions and the straight leg raise tests.

Petitioner proved his services were reasonable and medically necessary on July 22, 2003, to treat the symptoms of Claimant’s compensable injury. Even if Dr. Martin’s conclusion that Claimant did not need further chiropractic care were correct, that conclusion would not necessarily obviate the neurologic services Petitioner provided. It was undisputed that Claimant had low back and leg pain on July 15 and 22, 2003. The duration, nature, and location of her pain justified a neurological examination on July 22, 2003, to rule out nerve root involvement. The associated EMG and NCV tests done that date were likewise justified. Carrier should reimburse Petitioner for the services he provided Claimant.

III. FINDINGS OF FACT

1. In ___, Claimant sustained a back injury compensable under the Texas Workers’ Compensation Act (Act).
2. At the time of the compensable injury, Claimant’s employer had the workers compensation insurance coverage with American Casualty Company of Reading, Pa. (Carrier).
3. In July 2003, Claimant’s treating doctor referred her to Pedro Nosnick, M.D., for a neurological evaluation because her low back pain and leg numbness were unresolved at ten weeks post-injury.
4. On July 22, 2003, Petitioner performed a neurological examination on Claimant and found she had low back pain, paresthesia, and numbness radiating down her legs.
5. On July 22, 2003, Petitioner’s pain from her compensable injury had not resolved and she was not functioning normally.
6. On July 22, 2003, Petitioner found Claimant’s straight leg raises were positive at 40° on one leg and 55 on the other, signs of nerve root involvement.
7. Claimant’s MRI showed she had a disc bulge at the L4-S1 levels of her spine, another indicator of nerve root involvement.
8. Based on Claimant’s pain, paresthesia, and numbness in her legs and the objective findings on the straight leg raise tests, Petitioner needed to determine if her symptoms were caused by nerve root damage.
9. Petitioner performed EMG and NCV tests to determine if Claimant’s pain involved nerve root damage.
10. Petitioner’s neurological evaluation and EMG and NCV tests were medically necessary to treat Claimant’s pain and other symptoms in her back and legs.
11. Carrier denied Petitioner’s request for reimbursement for his services to Claimant.
12. After Carrier denied his request for reimbursement, Petitioner requested the Texas Workers’ Compensation Commission review the denial. That review produced the Medical Review Division’s decision adopting the opinion of its Independent Review Organization (IRO), 2004, which concurred with Carrier’s denial.
13. Petitioner timely appealed the MRD decision.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR 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 § 413.031(d) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMIN. CODE (TAC) §§ 133.305 and 133.308.
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
5. Petitioner had the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
6. The IRO had authority to review the parties’ positions and issue a decision pursuant to the Commission’s rule at 28 TAC §§ 133.305 and 133.308.
7. Pursuant to the Act, an employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. § 408.021(a).
8. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).
9. On July 22, 2003, Petitioner provided Claimant a neurological examination, EMG testing, and NCV testing, all of which were medically necessary healthcare under TEX. LAB. CODE ANN. §401.011(19)(A).
10. Petitioner is entitled to reimbursement from Carrier for the services and tests rendered to Claimant on July 22, 2003.

ORDER

It is ORDERED that American Casualty Company of Reading, Pa. reimburse Pedro Nosnick, M.D., for a neurological examination, an EMG test, and a NCV test provided to Claimant on July 22, 2003.

Signed February 15, 2004.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The hand injury is largely irrelevant to this dispute.↑
2. A sensation of pricking, tingling, or creeping on the skin having no objective cause and usually associated with injury or irritation of a sensory nerve or nerve root. Merriam Webster’s Medical Dictionary (1995).↑