DECISION AND ORDER
This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder.
A contested case hearing was held on January 5, 2009 with the record closing on January 7, 2009 to decide the following disputed issue:
Is the preponderance of the evidence contrary to the decision of
the IRO that the Claimant is not entitled to a repeat EMG/NCV for the compensable injury of ____________?
Petitioner/Claimant appeared and was assisted by MH, ombudsman. Respondent/Carrier appeared and was represented by DP, attorney.
Claimant sustained a compensable injury on ____________ when a pipe fell striking him in the right groin and iliac crest. Claimant underwent an MRI of the lumbar spine on April 18, 2008 that revealed a disc bulge at L5-S1. Claimant has complaints of low back pain radiating to the left lower extremity. Claimant underwent an EMG/NCV of the lower extremities on December 1, 2006 which was normal. The Claimant continues to have complaints of lumbar pain radiating to his lower extremities. The Claimant's treating doctor, Dr. Z, has recommended a repeat EMG/NCV of the lower extremities. This procedure was denied by the Carrier and submitted to an IRO who upheld the Carrier's denial.
The IRO, a board certified neurosurgeon, concluded that there had been no change in the Claimant's physical examination or complaints to suggest that the EMG/NCV would be any different or yield any useful information. The IRO reviewer also noted that the recent MRI was unremarkable and there did not appear to be any compelling reason as to why these studies need to be repeated. The IRO determined that a repeat EMG/NCV was not medically necessary.
Texas Labor Code 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 injured employee’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.” “Evidence based medicine” is further defined, by Section 401.011(18-a)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 of Workers’ Compensation has adopted treatment guidelines under Division Rule 137.100. That rule requires that health care providers provide treatment in accordance with the current edition of the ODG, and treatment provided pursuant to those guidelines is presumed to be health care reasonably required as mandated by the above-referenced sections of the Texas Labor Code. The initial inquiry, therefore, in any dispute regarding medical necessity, is whether the proposed care is consistent with the ODG.
Under the ODG, in reference to EMG's, the recommendation is:
Recommended as an option (needle, not surface). EMGs (electromyography) may be useful to obtain unequivocal evidence of radiculopathy, after 1-month conservative therapy, but EMG's are not necessary if radiculopathy is already clinically obvious. (Bigos, 1999) (Ortiz-Corredor, 2003) (Haig, 2005) No correlation was found between intraoperative EMG findings and immediate postoperative pain, but intraoperative spinal cord monitoring is becoming more common and there may be benefit in surgery with major corrective anatomic intervention like fracture or scoliosis or fusion where there is significant stenosis. (Dimopoulos, 2004) EMG’s may be required by the AMA Guides for an impairment rating of radiculopathy. (AMA, 2001) (Note: Needle EMG and H-reflex tests are recommended, but Surface EMG and F-wave tests are not very specific and therefore are not recommended. See Surface electromyography.)
The Claimant's treating doctor, Dr. Z, board certified in neurosurgery, responded to the IRO report in a letter dated December 1, 2008. Dr. Z recommended an EMG/NCV noting that it was "very important to give us information about the nerves, because of the important atrophy of the left leg and because the patient has been getting progressively worse." Dr. Z has diagnosed atrophy of the left lower extremity and suggested that the EMG/NCV of the lower extremities will give very valuable information regarding whether the Claimant has a pathology that is peripheral in the left lower extremity or is something that is compressing the nerves at the lumbosacral plexus (Dr. Z has also recommended a CT-scan of the abdomen). Dr. Z stated that he did consider the ODG in making his recommendation and that it was reasonable and necessary medical treatment for the Claimant's compensable injury.
The ODG suggest that EMG's may be useful to obtain unequivocal evidence of radiculopathy, after 1-month conservative therapy, but EMG's are not necessary if radiculopathy is already clinically obvious. Dr. Z states, repeatedly, in his report that the Claimant has obvious clinical signs of radiculopathy including significant atrophy in his left lower extremity. Dr. Z is requesting the EMG, not to confirm the existence of radiculopathy, but to determine the source of the radiculopathy. The IRO reviewer and Dr. Z reviewed and considered the Claimant's medical records and both consulted and applied the ODG with regard to EMG's. The ODG does not specifically address criteria for repeat EMG's but gives some guidance with respect to the necessity of an EMG. When both parties cite the ODG in support of their position, that position must be supported by sufficient evidence to justify application of the ODG. In this case, the IRO concluded that there had been no change in the Claimant's physical examination or complaints to suggest that the EMG/NCV would be any different or yield any useful information. Dr. Z explained that the Claimant has atrophy of the left lower extremity associated to the clinical picture of the lumbosacral radiculopathy with changes in the reflexes and in the sensory examination that are different than the prior examinations, demonstrating that the patient is getting worse with more neurological findings. Dr. Z details how the Claimant's condition has continued to deteriorate since the first EMG which was performed back in December 2006 and he sufficiently explains why the Claimant needs a repeat EMG while also considering the recommendations suggested in the ODG.
Dr. Z’s report is specific and sets out exactly how Claimant’s clinical presentation comports with the ODG indications for EMG/NCV testing. Under the Act, treatment provided pursuant to the ODG is presumed to be health care reasonably required as mandated by the above-referenced sections of the Texas Labor Code. The opinion of the IRO is based on a general reference to the ODG but does not cite any ODG prohibition or recommendation against repeat EMG/NCV testing grounded in a full review of the medical evidence presented. The preponderance of the evidence presented at this hearing is contrary to the IRO decision.
Even though all the evidence presented was not discussed, it was considered. The Findings of Fact and Conclusions of Law are based on all of the evidence presented.
FINDINGS OF FACT
- The parties stipulated to the following facts:
A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
B. On ____________, Claimant was the employee of (Employer), when he sustained a compensable injury.
CONCLUSIONS OF LAW
- The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
- Venue is proper in the (City) Field Office.
- The preponderance of the evidence is contrary to the decision of the IRO that a repeat EMG/NCV of the lower extremities is a not health care service reasonably required for the compensable injury of ____________.
Claimant is entitled to a repeat EMG/NCV of the lower extremities for the compensable injury of ____________.
Carrier is ordered to pay benefits in accordance with this decision, the Texas Workers’ Compensation Act, and the Commissioner’s Rules. Accrued but unpaid income benefits, if any, shall be paid in a lump sum together with interest as provided by law.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
RUSSELL OLIVER, PRESIDENT
6210 EAST HIGHWAY 290
AUSTIN, TX 78723
Signed this 15th day of January, 2009.
Carol A. Fougerat