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Title: 

453-04-8342-m5

Date: 

March 24, 2005

Type: 

Retrospective Medical Necessity

453-04-8342-m5

DECISION AND ORDER

Pedro Nosnik, M.D. (Provider) appealed the decision of the Texas Workers’ Compensation Commission (Commission) designee, an Independent Review Organization (IRO), which denied his request for reimbursement for consultation/office visit (CPT Code 99244), electromyography (EMG) (CPT Code 95861), nerve conduction (NCV) (CPT Codes 95900 and 95904), and H or F reflex study (CPT Codes 95935 and 95935-50) (collectively, requested services) performed on July 3, 2003, as not medically necessary. The Administrative Law Judge (ALJ) finds that Provider proved that the requested services were medically necessary; therefore, Great West Casualty Company (Carrier) shall reimburse Provider for the requested services.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

On March 7, 2005, ALJ Michael J. O’Malley convened the hearing on the merits at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Carrier appeared through its attorney, Karen B. Booher. Provider appeared and represented himself. After the evidence was presented, the record of the hearing closed the same day. There were no contested issues regarding notice or jurisdiction; therefore, those issues are presented in the findings of fact and conclusions of law without further discussion

II. BACKGROUND, EVIDENCE, AND DISCUSSION

Background

On ___, Claimant ___ (a 23 year-old male) sustained a compensable work-related injury lifting a heavy case with metal wheels. While lifting the case, a metal wheel struck his left hip and lumbar region knocking him to the ground and causing immediate pain. The initial diagnosis was a hip contusion and lumbar strain. An initial x-ray showed a transitional SI segment but no other abnormalities. On March 11, 2002, Claimant began chiropractic care several days a week. An MRI of the lumbar spine performed on March 20, 2002, showed no significant abnormalities.[1] A NCV conducted on April 11, 2002, showed non-specific F wave abnormalities suggestive of right L5

nerve irritation. The NCV report recommended a follow-up NCV be conducted.[2] On June 25, 2002, Alan G. Berg, D.O., determined that Claimant had reached maximum medical improvement (MMI) with a 5% impairment rating.[3] On September 16, 2002, another MRI was conducted showing no abnormalities. However, on May 23, 2003, a third MRI showed disc herniation at L5-S1. In July 2003, Claimant was referred to Provider to perform the requested services based on the positive results of a sensory examination.

Legal Standards

Provider has the burden of proof in this proceeding. 28 Tex. Admin Code § 148.21(h). 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. Labor Code Ann. § 408.021(a).

  1. Parties’ Positions and Evidence
  2. Provider’s Position and Evidence

After submitting documents in evidence, Dr. Nosnik testified on the medical necessity of the requested services. He testified that Claimant had been symptomatic for over a year, complaining of severe back and lower extremity pain. He further testified that there was clear medical evidence showing radiculopathy and nerve irritation. Based on the positive results of the sensory examination, indicating radiculopathy or nerve irritation, performed by Jack S. LoCascio, D.C., Claimant’s treating doctor, as well as Claimant’s medical history and symptoms, Provider stated that the requested services were medically necessary.

Carrier’s Position and Evidence

Carrier submitted documents in evidence but did not call any witnesses to testify. Carrier noted that MRIs, x-rays, and an NCV study were performed but did not indicate any significant abnormalities of the lumbar region; therefore, no objective medical findings existed justifying the requested services. Carrier also relied on Dr. Berg’s determination that Claimant had reached MMI with a 5% impairment rating on June 25, 2002.

ALJ’s Analysis

The ALJ finds Provider proved by a preponderance of evidence that the requested services were medically necessary. First, although two MRIs did not show significant abnormalities, the last MRI conducted on May 23, 2003, showed a posterior central annular tear and annular disc bulge at

L4-5 and disc herniation at L5-S1.[4] Second, the nerve conduction studies performed on April 11, 2002, showed nerve irritation at L5 and recommended a follow-up study to monitor the nerve irritation.[5] Third, Dr. Berg’s June 2002 finding that Claimant had reached MMI with a 5% impairment rating was premature.[6] In June 2002, Claimant was experiencing significant pain, and it was still unclear at that time what the source of Claimant’s pain was. Fourth, Provider performed the requested services after Dr. LoCascio had conducted a sensory exam and determined that the requested services were necessary to treat Claimant.[7] Fifth, in October 2003, Harold Nachimson, M.D., evaluated and examined Claimant and determined that he was not at MMI. Dr. Nachimson also indicated that Claimant had been inadequately evaluated and determined there were problems associated with nerve irritation, which further justifies the requested services in July 2003.[8] Sixth, Carrier preauthorized the requested services suggesting that the requested services were medically necessary.[9] Finally, in July 2003, Claimant had been in severe pain for over a year and, even with chiropractic care, he did not seem to have any relief from his pain. For these reasons, the ALJ finds that the requested services were medically necessary.

III. FINDINGS OF FACT

  1. On ___, Claimant ___ (Claimant) sustained a compensable work-related injury while lifting a heavy case with metal wheels. While lifting the case, a metal wheel struck his left hip and lumbar region knocking him to the ground and causing immediate pain.
  2. At the time of the compensable injury, Claimant’s employer had workers’ compensation insurance with Great West Casualty Company (Carrier).
  3. Claimant’s initial diagnosis was a hip contusion and lumbar strain.
  4. An initial x-ray showed a transitional SI segment but no other abnormalities.
  5. On March 11, 2002, Claimant began chiropractic care several days a week.
  6. An MRI of the lumbar spine performed on March 20, 2002, showed no significant abnormalities.
  7. An NCV conducted on April 11, 2002, showed non-specific F wave abnormalities suggestive of right L5 nerve irritation.
  8. The April 11, 2002 NCV report recommended a follow-up NCV.
  9. Dr. Berg’s June 25, 2002 determination on maximum medical improvement (MMI) for Claimant was premature given Claimant’s pain and lack of a clear diagnosis.
  10. On September 16, 2002, a second MRI showed no abnormalities.
  11. On May 23, 2003, a third MRI showed a posterior central annular tear and annular disc bulge at L4-5 and disc herniation at L5-S1.
  12. Jack S. LoCascio, D.C., Claimant’s treating doctor, referred Claimant to Pedro Nosnik, M.D. (Provider) based on the results of Claimant’s sensory examination.
  13. On July 3, 2003, Provider evaluated Claimant and billed Carrier for consultation/office visit (CPT Code 99244), electromyography (EMG) (CPT Code 95861), nerve conduction (NCV) (CPT Codes 95900 and 95904), and H or F reflex study (CPT Codes 95935 and 95935-50) (collectively, requested services).
  14. Carrier preauthorized the requested services suggesting that the requested services were medically necessary.
  15. In October 2003, Harold Nachimson, M.D., evaluated Claimant and determined that he was not at MMI.
  16. Dr. Nachimson also indicated that Claimant had been inadequately evaluated and determined there were problems associated with nerve irritation, confirming the results of the nerve conduction study performed by Provider.
  17. At the time of the requested services, Claimant had been in severe pain for over a year, and even with chiropractic care, he did not seem to have any relief from his pain.
  18. Carrier denied payment for the requested services as not medically necessary.
  19. On July 7, 2004, an Independent Review Organization (IRO) upheld Carrier’s decision to deny reimbursement for the requested services.
  20. On July 29, 2004, Provider appealed the IRO’s decision.
  21. The Texas Workers’ Compensation Commission (Commission) sent notice of the hearing to the parties on August 18, 2004. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented, the time and place of the hearing, and the statutes and rules involved.
  22. The hearing was held on March 7, 2005. Carrier appeared through its attorney, Karen B. Booher. Provider appeared and represented himself.
  23. At the hearing, the only contested issue involved the medical necessity of the requested services.

IV. CONCLUSIONS OF LAW

  1. 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 Tex. Lab. Code Ann. §§ 402.073 and 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
  2. Proper and timely notice of the hearing was provided to the parties in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
  3. 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).
  4. Pursuant to 28 Tex. Admin. Code § 148.21(h), Provider has the burden of proving by a preponderance of the evidence that the requested services were medically necessary.
  5. Provider proved by a preponderance of the evidence that the requested services were medically necessary.
  6. Based on the Findings of Fact and Conclusions of Law, Carrier should reimburse Provider for the requested services.

ORDER

IT IS HEREBY ORDERED that Great West Casualty Company shall reimburse Pedro Nosnik, M.D., for the consultation/office visit (CPT Code 99244), electromyography (EMG) (CPT Code 95861), nerve conduction (NCV) (CPT Codes 95900 and 95904), and H or F reflex study (CPT Codes 95935 and 95935-50) performed on July 3, 2003.

Signed March 24, 2005.

MICHAEL J. O’MALLEY
Administrative Law Judge
State Office of Administrative Hearing

  1. Carrier Ex. 1 at 239.↑
  2. Carrier Ex. 1 at 264.↑
  3. Carrier Ex. 1 at 28-31.↑
  4. Provider Ex. 1 at 20.↑
  5. Carrier Ex. 1 at 264.↑
  6. Carrier Ex. 1 at 28-31.↑
  7. The EMG nerve conduction performed by Provider showed chronic L5-S1 radiculopathy on the right side. Provider Ex. 1 at 7-9.↑
  8. Carrier Ex. 1 at 286-287.↑
  9. At the time of the preauthorization request, Carrier could have denied preauthorization based on its assessment that the services were not medically necessary.↑