SOAH DOCKET NO. 453-04-6066.M5
TWCC MR No. M5-03-2608-01
AMERICAN CASUALTY COMPANY ' BEFORE THE STATE OFFICE
OF READING PA, Petitioner '
ADVANCED MEDICAL '
ASSOCIATES, Respondent ADMINISTRATIVE HEARINGS
DECISION AND ORDER
American Casualty Company of Reading PA (American Casualty) requested a hearing to
contest an Independent Review Organization (IRO) determination, made on behalf of the Texas
Workers= Compensation Commission (Commission) Medical Review Division, that
electrodiagnostic testing and other services provided by Advanced Medical Associates (Advanced
Medical) to an injured worker (Claimant) on October 8, 2002, were medically necessary. The ALJ
concludes that American Casualty proved that the services were medically unnecessary. As a result,
this decision orders that American Casualty is not required to pay for the services.
I. PROCEDURAL HISTORY
A d m i n istr a ti v e L a w J u d g e
A hearing convened on December 1, 2004, before the undersigned
(ALJ) at the State Office of Administrative Hearings, Austin, Texas. American Casualty appeared
and was represented by its attorney, Shelley Gatlin. Advanced Medical appeared through Susan
Towne, a representative of John Slaughter, D.C.,1 of Advanced Medical. The hearing closed on
December 1, 2004.
The records indicate that Karl Kuchenbacker, D.C., was the Claimant's treating doctor (Ex. 2 at 34) at
Advanced Medical, although Dr. Slaughter and Tim Ashley, D.C., also appear in the record as her doctors.
1. Factual and Legal Background to Request
The Claimant sustained an at-work injury on___, lifting files out of a bin. She underwent
extensive neurological testing on October 8, 2002, which appears to have shown an absence of
neurological problems.2 According to the IRO decision, the treatments/services include:
$ range of motion testing;
$ muscle testing;
$ sensory nerve testing;
$ AH@ or AF@ reflex study;
$ neuromuscular junction testing;
$ temperature gradient studies;
$ prolonged evaluation/management service;
$ needle electromyography-2 extremeties;
$ needle electromyography limited study;
$ nerve conduction study;
$ Tensilon test;
$ office consultation;
$ sterile needles;
$ conductive paste or gel;
$ betadine or Phisohex solution; and
$ tape alcohol or peroxide.3
The total amount in dispute is $2,209.00. Because American Casualty denied all of the
services on the basis of unnecessary medical treatment with peer review,4 this decision will review
the appeal in light of medical necessity alone.
T E X . L A B O R C O D E A N N .
Employees have a right to necessary health care under ''408.021 and
401.011. Section 408.021(a) provides AAn employee who sustains 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: (1) cures or relieves the effects naturally resulting from the
2 Ex. 2 at 71-73.
3 Ex. 1, Tab 1. From the tenor of the parties’ arguments and the IRO decision, it appears that all of these
services were part of or connected with the October 8, 2002, electrodiagnostic testing.
4 Ex. 1, Tab 2, at 127-134
compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to
or retain employment.@ Section 401.011(19) of the Labor Code provides that health care includes "all
reasonable and necessary medical . . . services."
T E X . A D M I N . C O D E
As appellant, American Casualty has the burden of proof in this case. 1
(TAC) '155.41; 28 TAC '148.21(h).
The IRO review was performed by a licensed chiropractor who stated the following rationale
in support of his/her conclusion:
The provider was appropriate (sic) to have electromyography (EMG) and nerve
conduction velocity (NCV) studies performed on this patient. If the diagnostic
testing revealed a radiculopathy or impingement, it would allow the provider to have
a greater insight to the patient=s current pain generators and thus allow the
development of a different algorithm that may include invasive applications.
The MRI data revealed a tear of the supraspinatus and possible glenoid labrum defect
elevates (sic) the state of the patient=s injury; it is not a simple sprain/strain. The
need to establish positive pain generators would only assist this patient in any active
The medical record, as of 10/27/02, does show that all chiropractic and physical
therapy applications have been exhausted. Therefore, it is determined that the . . .
[services/treatments] were medically necessary.5
B. Evidence and Analysis
1. American Casualty
William Defoyd, D.C., testified on behalf of American Casualty.6 Dr. Defoyd said he
practices with two health care providers who perform electrodiagnostic testing and he has referred
patients for that testing, although only a small minority.
5 Ex. 1, Tab 1. The reviewer cited four clinical practice guidelines in support of his/her opinion.
6 Dr. Defoyd graduated from chiropractic school with honors. He has been in full practice since 1987. He is a
board-certified chiropractic-orthopedist. He is the primary chiropractic representative to the Commission advisory
committee. He is on the executive council of the Commission’s medical quality review panel.
Dr. Defoyd testified that the Claimant was thirty years old at the time of her injury. She
suffers from neck and right shoulder girdle pain into her arm.
Dr. Defoyd said the Claimant had cervical and shoulder magnetic resonance imaging (MRI)
scans on July 17, 2002. The shoulder MRI indicated a partial supraspinatus rotator cuff tear
posteriorly and a possible injury to the anterior aspect of the glenoid labrum. The MRI physician
also wrote Aclinical correlation is advised.@7 Other findings include a statement that the labrum
appears to be in tact, but there is some bright signal underneath the anterior aspect of the labrum,
which could correlate with a labral injury, although the doctor performing the MRI could not be sure
because the films are blurred. The doctor said there is a focal collection of fluid seen in the region of
the rotator cuff posteriorly that probably represents a partial supraspinatus rotator cuff tear.8
Dr. Defoyd cited a cervical MRI performed on the same day, which, he said, showed nothing
unusual. The physician performing the MRI concluded, "No significant abnormalities are identified.
Correlation with the clinicals is advised."9
Dr. Defoyd indicated that before this MRI, Dr. Kuchenbacker thought cervical herniation
could be causing spinal cord compression, resulting in the Claimant=s pain, but the Claimant=s July
25, 2002, treatment notes show that an Advanced Medical doctor, Tim Ashley, D. C., ruled out CPT
code 722.71 as a diagnosis.10 Dr. Defoyd said the July 25, 2002, treatment record also shows that
Dr. Ashley ruled out nerve entrapment and cervical Aseg.@ dysfunction (loss of mobility); however,
the ALJ believes the records are ambiguous as to whether those diagnoses were actually ruled out.
Dr. Defoyd cited a test performed by Dr. Kuchenbacker on May 28, 2002, which showed shoulder
7 Dr. Defoyd said the quoted notation means the treating doctor is advised to see if his/her observations
correlate with the MRI findings.
8 Ex. 1, Tab 2, at 84. Dr. Defoyd testified that the supraspinatus muscle is the biggest muscle in the rotator
cuff. He said the glenoid labrum is a part of the shoulder socket.
9 Ex. 1, Tab 2, at 85-86.
10 Ex. 1, Tab 2, at 92. CPT code 722.71 is described in American Casualty’s records as “Intervertebral disc
disorder with myelopathy, cervical region.” Ex. 2 at 41. Advanced Medical submitted the request under that CPT code
and codes 723.4, 722.0, and 728.85. Ex. 1, Tab 2, at 121-126. Diagnosis codes 723.4, 722.0, and 728.5 are described by
American Casualty as brachial neuritis or radiculitis nos, displacement of cervical intervertebral disc without myelopathy,
and spasm of muscle respectively. Ex. 2 at 41. Advanced Medical’s “Letter of Medical Necessity,” describes code 723.4
as “cervical radiculopathy (nerve root compression at the neck” and “cervical/brachial radiculitis.” (Ex. 1, Tab 2, at 105).
pain and restricted shoulder motion.11 He said this shows the Claimant=s pain is from her shoulder.
Dr. Defoyd said a physical exam performed by James W. Galbraith, M. D., showed the
Claimant=s reflexes, strength, and sensation are within normal limits and that she had trouble raising
her right arm.12 Dr. Defoyd maintained this was consistent with the MRI findings and inconsistent
with a cervical myelopathy diagnosis.
Overall, Dr. Defoyd said there was no indication for neurological testing because: the
cervical MRI results were normal; the shoulder MRI shows a rotator cuff tear and possible labral
tear as the cause of the Claimant=s pain; and the Claimant=s physical exam shows no neurological
deficit, i. e., no evidence of reproducible damage in terms of strength, reflexes, or sensation.
Dr. Defoyd cited an October 7, 2002, Aletter of medical necessity@ from Drs. Ashley and
Kuchenbacker diagnosing, among other matters, cervical radiculopathy, neuropathy,
cervical/brachial radiculitis, nerve root compression, neuritis/neuralgia, muscle weakness, and
disturbance of skin sensation. The doctors said that neurological studies would help rule out cervical
radiculopathy, brachial plexopathy, and cervical spine cord dysfunction.13 Dr. Defoyd pointed out
there was no evidence of neurological problems from the MRI, including nerve compression. He
contended that the nature of the Claimant=s injury was inconsistent with a brachial plexis injury. He
maintained the MRI is a very good exam to determine spinal cord dysfunction.
Dr. Defoyd addressed the specific neurological testing performed, including CPT codes
95861, an electromyography (EMG) of two extremities; 95869, a needle EMG limited to a study of
specific muscles; six units of 95900, a nerve conduction velocity study; six units of 95904, a nerve
conduction sensory study; six units of 95935, AH@ or AF@ reflex studies; and 95937, neuromuscular
junction testing. He maintained that none of this testing was appropriate, in view of the MRI and the
11 Ex. 1, Tab 2, at 93.
1 2 E x. 1, T a b 2, at 6 2.
13 Ex. 1, Tab 2, at 105.
reflex, strength, and sensation findings.14
Dr. Defoyd addressed other procedures. Regarding CPT code 93740Btemperature gradient
testingBhe said there is no evidence in the record for this type of problem and the results of this
study are not even shown. He asserted that CPT codes 95831 and 95851, muscle and range of
motion testing respectively, should have been included as part of the physical examination.15
Dr. Defoyd said the supplies billed were not necessary because the underlying procedures
were not necessary. He also said the cost of the supplies showed an extremely high markup. He
said these supplies are generally included as part of the procedure rather than being billed separately.
Dr. Defoyd addressed Advanced Medical=s CPT code 99244 charge for an office
consultation. He said under the Commission adopted 1996 medical fee guidelines (MFG), this code
requires a comprehensive history, comprehensive exam, and medical decision making of moderate
complexity. He contended that the medical records do not indicate a need for this type of office
Dr. Defoyd cited Advanced Medical=s charge based on CPT code 99358, for prolonged
evaluation and management. He said this code is used for a review of records over an extended
period. He said there were not sufficient records to justify this review.
Dr. Defoyd maintained the Claimant=s treatment was Asub-optimal,@ i.e., there was a lack of
focused treatment. He said, instead of performing electrodiagnostic testing, he would have done a
more detailed physical exam, including moving the Claimant=s neck to see if there was a relationship
between that movement and her arm because if there were arm symptoms from neck movement,
there could be a nerve problem. He asserted that pain into the arm from a rotator cuff could be a
referenced pain problem. He would also move her shoulder because shoulder movement causing
14 Dr. Defoyd maintained §4(B)(2)(b) of the Commission-adopted Medical Fee Guideline (MFG) (28 TAC §'
134.201) says that “F” studies can be billed separately only if both sides are injured rather than just one side, as in this
case. He also argued, under §4(B)(2)(a) of the MFG, that “F” testing is payable for one test, rather than for each nerve,
as Advanced Medical billed.
Dr. Defoyd acknowledged that American Casualty's reason for denying the claim was a lack of medical
necessity with peer review and that matters such as unbundling procedures were not indicated on the EOBs.
arm pain would indicate a referenced pain problem.
Dr. Defoyd indicated other appropriate testing. He said stretching the nerves in the
Claimant=s neck to her arm would show whether there was nerve tension. He would determine what
parts of the Claimant=s hand were in pain, because different nerves go to different hand parts. He
said hurting in the entire hand would indicate that she did not have a nerve problem.
Dr. Defoyd said he would have attempted to increase the strength and mobility of the
Claimant=s shoulder and decrease the inflamation. If that did not work, he would get an MRI scan or
might order a cortisone injection. If nothing worked, he might recommend surgery.
Dr. Defoyd maintained there is a significant question over whether the performance of needle
EMGs is within the scope of a chiropractor=s practice. He said the issue is controversial Ato put it
Dr. Defoyd acknowledged that the list of diagnostic interventions in the Spine Treatment
Guideline includes EMGs and nerve conduction studies and that the recommended time for these is
from six weeks to four months post-injury. He also agreed that a document in Advanced Medical=s
records entitled AGuidelines in Electrodiagnostic Medicine@16 says electrodiagnostic studies are
extensions of the clinical examination. He agreed the article says the studies help evaluate a wide
range of symptoms, such as weakness, numbness, tingling and pain, as well as fatigue, cramping,
stiffness, and abnormal sensations. He agreed that a patient would not need to exhibit all the
t e stifi e d
symptoms to be eligible for an exam. He , however, that because a patient exhibits some
symptoms does not mean testing is necessary and merely because a diagnostic test is listed in the
Spine Treatment Guideline does not mean it is necessary.
Dr. Defoyd acknowledged that Dr. Galbraith=s June 26, 2002, medical consultation for the
Claimant showed moderate pain on range of motion in all directions with spasms, that Dr.
1 6 E x. 2 at 1 8 8-1 8 9.
Galbraith=s impression was cervical sprain/strain,17 and that restricted mobility is consistent with a
cervical sprain/strain. He agreed that a patient treatment record by Dr. Ashley on the same date
showed numbness and tingling of the hand and fingers18, but maintained that this does not
necessarily indicate a nerve issue. He said the rest of the record, including the cervical MRI and
physical tests, does not correlate with a nerve issue. He maintained the July 17, 2002, MRI clearly
shows the nerve roots in the Claimant=s neck.
Dr. Defoyd contended the IRO decision did not make sense. After acknowledging rotator
cuff and possible labram tears, the IRO doctor said the EMG and nerve conduction velocity studies
were indicated to determine the etiology of the Claimant=s pain. He said the IRO doctor seemed to
miss the fact that the cervical MRI was normal. Dr. Defoyd said the decision also did not make
sense in view of the fact that the Claimant=s reflexes, strength, and flexibility were normal.
American Casualty argued the evidence showed the Claimant had shoulder and arm pain,
rather than neurological problems. It pointed out that the IRO doctor did not have the entire record
to review before reaching his/her conclusion.19
American Casualty acknowledged it agreed, at the Commission benefit review conference,
that the Claimant had a cervical sprain/strain20, but maintained that the agreement did not mean the
procedures at issue in this case were automatically medically necessary.
1 7 E x. 1, T a b 2, at 6 2-6 3.
1 8 E x. 1, T a b 2, at 6 5.
American Casualty initially denied the claim on the basis of a peer review, in which the reviewing doctor R.
A. Buczek, D.O., D.C., concluded:
diagnostics: no further diagnostic studies would be appropriate at this point. DC provider should
refrain from ordering an EMG/NCV/DSEP/SSEP, as the results of these Atests@ will in no way alter the
Chiropractor's treatment T program,1 which of course will be continuation of spinal manipulative, and
E x. 1, a b 2, at 1 3.
2 0 E x. 1, T a b 2, at 2.
2. Advanced Medical
Advanced Medical emphasized the fact the IRO decision was an independent review.
Advanced Medical pointed out the Claimant underwent months of therapy with no
improvement before the electrodiagnostic studies were performed. Dr. Defoyd agreed that the
records show the Claimant had not had significant improvement during that period. Advanced
Medical cited the fact that the testing is an extension of the clinical exam. It pointed to agreements
in the benefit review conference saying the Claimant had a cervical and shoulder injury.21 It said
two doctors thought the Claimant needed the testing, in addition to the IRO doctor.
Advanced Medical cited the fact that American Casualty denied the services/treatments on
the basis of medical necessity with peer review and not for other reasons.
In a letter written on July 25, 2003, Advanced Medical doctor John Slaughter, D.C.,22
contended that American Casualty=s peer review doctor, R. A. Buczek, never said the disputed
services were medically unnecessary, only that their results would not alter a chiropractor=s
Ex. 1, Tab 2, at 1.
22 The assertions and quotes from Dr. Slaughter were not cited by Ms. Towne in support of Advanced
23 Ex. 2 at 8.
In a letter written on July 25, 2002, Dr. Slaughter cited American Association of
Electrodiagnostics Medicine Guidelines as saying electrodiagnostic testing can establish the basis of
a patient=s symptoms, determine whether more testing is needed, establish the need for specific
therapy, and monitor the course of an injury.24
Dr. Slaughter also wrote in an October 8, 2002, ALetter of Medical Necessity,@ that
electrodiagnostic studies can define the pathophysiology of the disease process, the location of the
dysfunction, its duration and severity, and its time course. They can identify the specific level of
root injury and can also differentiate root injury and other peripheral nerve lesions that might
produce similar symptoms. He said,
This [electrodiagnostic testing] information is often more helpful than imaging
studies of the spine, since abnormalities on imaging studies are common and may not
be clinically relevant. . . . [T]hese enhanced radiographic techniques have increased
rather than lessened the need for electrodiagnostic studies. . . . Electrodiagnostic
information is critical since it alone is capable of indicating physiological
dysfunction and ongoing injury to the nerves. Without this information, the more
sensitive imaging may only result in inappropriate management based on clinical
irrelevant structural abnormalities.
The ability of electrodiagnostic studies to diagnose radiculopathy regardless of
etiology distinguishes these studies from imaging studies. Imaging studies, such as
CT and MRI, can give excellent anatomic identification of root deformity with
impressive lesions that do not visualize inflammatory or vascular nerve damage.
Electrodiagnostic studies are particularly helpful when the clinical examination is
equivocal because of poor cooperation by the patient due to pain, brain or spinal cord
damage, or a psychosomatic disorder.
. . . . The above supporting documentation was taken from the American Association
of Electrodiagnostic Medicine . . . .25
On three primary bases, this decision concludes that American Casualty proved the services
were not medically necessary. First, Dr. Defoyd=s testimony was plausible and persuasive that there
2 4 E x. 2 at 8.
2 5 E x. 2 at 6 9-7 0.
was no objective basis for the testing. His conclusion was supported by two factors: the cervical
MRI was normal and tests for the Claimant=s strength, reflexes, and sensation were also normal.
Advanced Medical never cited an unequivocal objective basis for the testing. Its primary reason
appears to be that the Claimant had received treatment for months without improving. However, Dr.
Defoyd pointed out certain procedures Advanced Medical could have done, but failed to do, to test
the Claimant=s condition.
Second, the shoulder MRI provided a reason for the Claimant=s painBa torn rotator cuff and
possible labral tear. Dr. Defoyd explained that, in treating these injuries, a cortisone injection and
even surgery is sometimes necessary.
Third, none of Advanced Medical=s doctors appeared at the hearing to testify or present
Advanced Medical=s case. It would have been helpful and perhaps persuasive for either Dr.
Slaughter, Dr. Kuchenbacker, or Dr. Ashley to have provided expert and sworn testimony that was
subject to questioning, including questioning about the efficacy of electrodiagnostic testing after a
normal MRI. Ms. Towne=s medical qualifications were not indicated. Dr. Defoyd was able to
answer virtually all of her questions. Overall, his reasoning was more persuasive than hers.
Another factor that made Advanced Medical=s case less persuasive is what appears to be
inconsistent diagnoses of the Claimant=s problems. On July 25, 2002, Dr. Ashley said the MRI had
b ut th at
ruled out Diagnosis code 722.71, code was included on Advanced Medical=s Health
7 2 3 . 4 , 7 2 2 . 0 , a n d 7 2 8 . 5 26
Insurance Claim Forms as a reason for the testing, along with Codes . In its
October 7, 2002, ALetter of Medical Necessity,@ Advanced Medical no longer included diagnosis
codes 722.71, 722.0, or 728.5 as reasons for the procedure, but continued to include code 723.4 and
seven new diagnosis codes.27
2 6 E x. 2 at 4 2-4 7.
2 7 E x. 1 at 1 0 5.
III. FINDINGS OF FACT
1. The Claimant sustained an at-work injury on ___, lifting files out of a bin.
2. The Claimant underwent extensive neurological testing performed by Advanced Medical
Associates (Advanced Medical) on October 8, 2002.
3. The treatments/services at issue include: range of motion testing, muscle testing, sensory
nerve testing, AH@ or AF@ reflex study, neuromuscular junction testing, temperature gradient
studies, prolonged evaluation/management service, needle electromyography-2 extremeties,
needle electromyography limited study, nerve conduction study, Tensilon test, office
consultation, electrodes, sterile needles, conductive paste or gel, betadine or Phisohex
solution, and tape alcohol or peroxide.
4. The Claimant=s employer=s insurance carrier, American Casualty Company of Reading PA
(American Casualty), denied Advanced Medical=s claim for the treatments/services.
5. Advanced Medical requested medical dispute resolution.
6. An independent review organization review was performed by a licensed chiropractor who
concluded that the services/treatments were medically necessary.
7. It is undisputed that American Casualty requested a hearing not less than 20 days after
receiving notice of the hearing.
8. All 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; the particular
sections of the statutes and rules involved; and a short, plain statement of the matters
9. All parties had an opportunity to respond and present evidence and argument on each issue
involved in the case.
10. A cervical magnetic resonance imaging (MRI) performed on July 25, 2002, was normal.
11. Testing showed the Claimant=s tests for strength, reflexes, and sensation were normal.
12. A shoulder MRI performed on July 17, 2002, showed a torn rotator cuff and possible labral
tear as the reasons for the Claimant=s pain.
13. There was no unequivocal objective basis for the neurological testing at issue.
14. There were certain manual testing procedures involving a focused examination of the
Claimant=s problems that were not performed, but could have shown whether the Claimant
had a nerve problem or referenced pain from her rotator cuff tear.
III. 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. ' 413.031(k) and TEX. GOV'T. CODE ANN. ch. 2003.
1 T E X. A D M IN. C O D E ( T A C )
2. American8 Casualty 4 has ) .the burden of proof in this case.
1 5 5.4 1; 2 T A C 1 8(h '
3. Notice of the hearing was proper and timely. TEX. GOVT. CODE ANN. '' 2001.051 and
4. American Casualty proved that the October 8, 2002, treatments/services were medically
unnecessary. TEX. LAB. CODE ANN. ' 408.021(a).
5. American Casualty should not be required to pay for the October 8, 2002,
treatments/services. TEX. LAB. CODE ANN. ' 408.021(a).
IT IS THEREFORE ORDERED that American Casualty Company of Reading PA is not
required to pay the cost of the October 8, 2002, treatments/services provided by Advanced Medical
Associates to the Claimant on October 8, 2002.
SIGNED January 27, 2005.
JAMES W. NORMAN
ADMINISTRATIVE LAW JUDGE
STATE OFFICE OF ADMINISTRATIVE HEARINGS