DECISION AND ORDER
This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and the Rules of the Texas Department of Insurance, Division of Workers’ Compensation. For the reasons discussed herein, the Administrative Law Judge determines that the preponderance of the evidence is not contrary to the decision of the Independent Review Organization (IRO) that claimant is not entitled to EMG/NCV testing of the left upper extremity.
STATEMENT OF THE CASE
On December 13, 2017 Britt Clark, a Division Administrative Law Judge, held a contested case hearing to decide the following disputed issue:
Is the preponderance of the evidence contrary to the decision of the IRO that claimant is not entitled to EMG/NCV testing of the left upper extremity?
Claimant appeared and was assisted by JF, ombudsman. Carrier appeared and was represented by AS, attorney.
No witnesses testified.
The following exhibits were admitted into evidence:
Administrative Law Judge’s Exhibits ALJ-1 and ALJ-2.
Claimant’s Exhibits C-1 through C-7.
Carrier’s Exhibits CR-A through CR-F.
It is undisputed that Claimant sustained a compensable injury on (Date of Injury). Claimant’s neurosurgeon, Dr. JR, requested preauthorization for EMG/NCV testing of the left upper extremity. Carrier’s utilization review agent (URA) doctors denied the request. The IRO doctor agreed with the denial. Claimant is disputing the IRO decision and relied on the opinion of Dr. R to establish that the preponderance of the evidence is contrary to the decision of the IRO.
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. Health care reasonably required is further defined in Texas Labor Code Section 401.011 (22a) 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 evidence based medicine or, if evidence based medicine is not available, then generally accepted standards of medical practice recognized in the medical community. Health care under the Texas Workers' Compensation system must be consistent with evidence based medicine if that evidence is available. Evidence based medicine is further defined in Texas Labor Code Section 401.011 (18a) to be 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. The Commissioner of the Division of Workers' Compensation is required to adopt treatment guidelines that are evidence-based, scientifically valid, outcome-focused, and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. Texas Labor Code Section 413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the commissioner are presumed reasonable in accordance with Texas Labor Code Section 413.017(1).
In accordance with the above statutory guidance, the Division of Workers' Compensation has adopted treatment guidelines by Division Rule 137.100. This rule directs health care providers to provide treatment in accordance with the current edition of the Official Disability Guidelines (ODG), and such treatment is presumed to be health care reasonably required as defined in the Texas Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG. Also, in accordance with Division Rule 133.308(s), "A decision issued by an IRO is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. In a Contested Case Hearing (CCH), the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medical evidence."
On the date of this medical contested case hearing, the Official Disability Guidelines provides the following with regard to the EMG/NCV Testing:
CERVICAL SPINE: EMG: Recommended (needle, not surface) as an option in selected cases.
The American Association of Electrodiagnostic Medicine conducted a review on electrodiagnosis in relation to cervical radiculopathy and concluded that the test was moderately sensitive (50%-71%) and highly specific (65%-85%). (AAEM, 1999) EMG findings may not be predictive of surgical outcome in cervical surgery, and patients may still benefit from surgery even in the absence of EMG findings of nerve root impingement. This conclusion is in stark contrast to the lumbar spine, where EMG findings have been shown to be highly correlated with symptoms.
Positive diagnosis of radiculopathy: Requires the identification of neurogenic abnormalities in two or more muscles that share the same nerve root innervation but differ in their peripheral nerve supply.
Timing: Timing is important, as nerve root compression will reflect as positive if active changes are occurring. Changes of denervation develop within the first to third week after compression (fibrillations and positive sharp waves develop first in the paraspinal muscles at 7-10 days and in the limb muscles at 2-3 weeks), and reinnervation is found at about 3-6 months
Acute findings: Identification of fibrillation potentials in denervated muscles with normal motor unit action potentials (usually within 6 months of symptoms: may disappear within 6 weeks in the paraspinal muscles and persist for up to 1-2 years in distal limbs).
Chronic findings: Findings of motor unit action potentials with increased duration and phases that represent reinnervation. With time, these signals become broad, large and polyphasic and may persist for years.
Anatomy: The test primarily evaluates ventral (anterior) root function (motor) and may be negative if there is dorsal root compression (sensory) only. Only C4-8 and T1 in the neck region have limb representation that can be tested electrodiagnostically. The anatomic basis for this feature lies in the fact that the cervical nerve roots have a motor and a sensory component. It is possible to impinge the sensory component with a herniated disc or bone spur and not affect the motor component. As a result, the patient may report radicular pain that correlates to the MRI without having EMG evidence of motor loss.
Paraspinal fibrillation potentials: May be seen in normal individuals and are nonspecific for etiology. The presence of these alone is insufficient to make a diagnosis of radiculopathy and they may be absent when there is a diagnosis of radiculopathy secondary to sampling error, timing, or because they were spared. They may support a diagnosis of radiculopathy when corresponding abnormalities are present in the limb muscles
Indications when particularly helpful: EMG may be helpful for patients with double crush phenomenon, in particular, when there is evidence of possible metabolic pathology such as neuropathy secondary to diabetes or thyroid disease, or evidence of peripheral compression such as carpal tunnel syndrome.
H-reflex: Technically difficult to perform in the upper extremity but can be derived from the median nerve. The test is not specific for etiology and may be difficult to obtain in obese patients or those older than 60 years of age.
(Negrin, 1991) (Alrawi, 2006) (Ashkan, 2002) (Nardin, 1999) (Tsao, 2007) See Discectomy-laminectomy-laminoplasty. (Surface EMG and F-wave tests are not very specific and are therefore not recommended. For more information on surface EMG, see the Low Back Chapter.)
While cervical electrodiagnostic studies are not necessary to demonstrate cervical radiculopathy, they have been suggested to confirm a brachial plexus abnormality or some problem other than cervical radiculopathy, but these studies can result in unnecessary over treatment. (Plastaras, 2011) (Lo, 2011) (Fuglsang-Frederiksen, 2011)
Nerve Conduction Studies (NCS)- Not recommended to demonstrate radiculopathy if radiculopathy has already been clearly identified by EMG and obvious clinical signs, but recommended if the EMG is not clearly radiculopathy or clearly negative, or to differentiate radiculopathy from other neuropathies or non-neuropathic processes if other diagnoses may be likely based on the clinical exam.
See the Shoulder Chapter, where nerve conduction studies are recommended for the diagnosis of TOS (thoracic outlet syndrome). See also the Carpal Tunnel Syndrome Chapter for more details on NCS. Studies have not shown portable nerve conduction devices to be effective.
There is minimal justification for performing nerve conduction studies when a patient is already presumed to have symptoms of radiculopathy. (Utah, 2006) (Lin, 2013) While cervical electrodiagnostic studies are not necessary to demonstrate a cervical radiculopathy, they have been suggested to confirm a brachial plexus abnormality, diabetic neuropathy, or some problem other than a cervical radiculopathy, with caution that these studies can result in unnecessary over treatment. (Emad, 2010) (Plastaras, 2011) (Lo, 2011) (Fuglsang-Frederiksen, 2011)
WRIST/HAND- Recommended as an option after closed fractures of distal radius & ulna if necessary to assess nerve injury. Also, recommended for diagnosis and prognosis of traumatic nerve lesions or other nerve trauma. (Bienek, 2006)
Electrodiagnostic testing includes testing for nerve conduction velocities (NCV), and possibly the addition of electromyography (EMG). For more information, see the Carpal Tunnel Syndrome chapter. Among patients seeking treatment for hand and wrist disorders generally, workers' compensation patients underwent more procedures and more doctor visits than patients using standard health insurance. WC patients underwent surgery at a higher rate -- 44% compared to 35% -- and electrodiagnostic testing -- 26% compared to 15%. (Day, 2010) Electrodiagnostic studies are recommended for neurotrauma (e.g., traumatic nerve lesion). Injury to the ulnar nerve can occur at the wrist and forearm in addition to median nerve injury at the wrist and ulnar nerve injury at the elbow. Studies may be done if the provider suspects ulnar nerve injury at the wrist and wants electrodiagnostic testing prior to deciding on surgical treatment. (Şahin, 2014) (AANEM, 2014) (Rettig, 1998)
Definitions: Electrodiagnostic Medicine (EDX) is a medical subspecialty of neurology, clinical neurophysiology, and physical medicine and rehabilitation. Electrodiagnostic Studies (EDS) is the overall global term for nerve conduction studies (NCS), nerve conduction tests (NCT), and electromyography studies (EMG). NCT includes sensory and motor studies. NCS is an electrodiagnostic medicine technique used to evaluate the electrical activity of motor and sensory nerves based on electrical conduction. EMG is an electrodiagnostic medicine technique for evaluating the electrical activity produced by skeletal muscles. Electrodiagnostic studies are not perfect. There are still false positives and false negatives, which is why a physician is needed to correlate electrodiagnostic study results with the history, physical examination and or response to previous treatments. If the purpose of EDX is to confirm a diagnosis such as CTS, then only the NCT is usually required, because most patients, especially in workers’ comp, present soon after the onset of their symptoms. Therefore, the nerve entrapment has not been present long enough to result in changes to the muscles, and the NCT will show early conduction delays, but the EMG will be normal. At this point, EMG has little value, adds significant costs, and most patients prefer not to be stuck with needles multiple times. However, if the patient has demonstrated muscle loss, has an injury with long term symptoms, or the clinical examination is unclear, then the EMG is appropriate. As far as what conditions are appropriate for EDX, they include any musculoskeletal condition or diagnosis that involves nerve or muscle dysfunction. A common list would include upper extremity (carpal tunnel syndrome, cubital tunnel syndrome, pronator teres syndrome, radial nerve wrist and elbow, & ulnar nerve wrist); polyneuropathies (diabetic polyneuropathy, acute demyelinating polyneuropathy (Guillain-Barre syndrome), chronic inflammatory demyelinating polyneuropathy, and toxic, metabolic, drug-induced polyneuropathy); spine (cervical radiculopathies, lumbosacral radiculopathies, and spinal stenosis); lower extremity (tarsal tunnel syndrome, tibial nerve, peroneal nerve, sural nerve); and generalized disorders (disorders of neuromuscular transmission, e.g., myasthenia gravis, myopathies, and motor neuron disease. i.e., ALS). (Melhorn, 2013)
Bilateral studies: Bilateral EMG is generally not necessary, but NCS may be necessary for comparison, depending on the results found on the affected side. If the NCS results are clearly abnormal, comparison is not necessary. If they are clearly normal, comparison is not necessary. However, if the results are borderline, the use of the unaffected side to get the closest measure of normal is appropriate since the standard is to use population normal, and a particular patient may be an outlier and test interpretation can be affected by this. The decision to test or not test the unaffected side should be made during the examination, which requires a conscientious examiner who is actively interpreting results as they occur (e.g. not reviewing a technician's results after the fact). There are a variety of reasons for bilateral NCS. Bilateral NCS results may be important, first, for diagnosis (clinical symptoms and physical examination matched to conduction delay on symptomatic side vs the non-symptomatic side to provide insight into diagnosis, treatment and outcomes). Second is related to causation to evaluate if the job may be the cause, and bilateral NCT can help with this determination. Third is related to response to treatment and expectations for return to work. Fourth, bilateral can help with apportionment if an impairment rating is required. Finally, the cost for a bilateral NCT is much less that the cost for one sided NCT/EMG. EMG on the asymptomatic side is not required. (Melhorn, 2013) (Dumitru, 2001)
The IRO doctor believed that Claimant suffers from a herniated nucleus pulposus (HNP) at C6-7 with exam findings on exam of a hypoesthesia in the left middle finger. He noted these findings already establishes a radicular process. The IRO doctor opined there was no need to perform an EMG to confirm radiculopathy and that an EMG is not recommended for suspected entrapment neuropathy. Two utilization review doctors on behalf of the Carrier believed that the EMG/NCV was not medically necessary. One of the utilization reviewers had a discussion with Dr. R’s office and believed that the records insufficiently justified or detailed the support for the requested treatment.
To rebut the IRO, Claimant provided the medical opinion of Dr. R. Dr. R indicated that he requested the EMG to differentiate between possible shoulder entrapment syndrome, left ulnar neuropathy, or left C7 or possible C8 radiculopathy. Dr. R did not cite the ODG or provide evidence-based medical studies supporting his request for treatment. Dr. R’s opinion was not persuasive in rebutting the opinion of the IRO, who is supported by the opinion of two utilization review doctors. After review of the evidence, the preponderance of the evidence is not contrary to the opinion of the IRO. Therefore, Claimant is not entitled the requested EMG/NCV testing of the left upper extremity.
The Administrative Law Judge considered all of the evidence admitted. The Findings of Fact and Conclusions of Law are based on an assessment of all of the evidence whether or not the evidence is specifically discussed in this Decision and Order.
FINDINGS OF FACT
- The parties stipulated to the following facts:
- Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.
- On (Date of Injury), Claimant was the employee of the (Employer), Employer.
- On (Date of Injury), Employer provided workers compensation insurance through Arrowhead Indemnity Company, Carrier.
- On (Date of Injury), Claimant sustained a compensable injury.
- Carrier delivered to Claimant a single document stating the true corporate name of Carrier, and the name and street address of Carrier’s registered agent, which document was admitted into evidence as Administrative Law Judge’s Exhibit Number 2.
- EMG/NCV testing of the left upper extremity is not health care reasonably required for the compensable injury of (Date of 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 not contrary to the decision of the IRO and Claimant is not entitled to EMG/NCV testing of the left upper extremity.
The preponderance of the evidence is not contrary to the decision of the IRO and Claimant is not entitled to EMG/NCV testing of the left upper extremity.
Carrier is not liable for the benefits at issue in this hearing, and it is so ordered. Claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.
The true corporate name of the insurance carrier is ARROWHEAD INDEMNITY COMPANY, and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY d/b/a CSC-LAWYERS INCORPORATING SERVICE
211 E. 7th STREET, SUITE 620
AUSTIN, TX 78701
Signed this 21st day of December, 2017.
Administrative Law Judge