DECISION AND ORDER

I. Summary

John A. Sazy, M.D. (Petitioner), sought review of a decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC or Commission) declining to preauthorize a lumbar discogram with CT scan to diagnose the nature of the back injury suffered by____ (Claimant). The substantive review of Petitioner’s claim was conducted by an Independent Review Organization (IRO). One Beacon Insurance Company^[1] (Carrier) had denied preauthorization for the treatment on the ground that the procedure was not medically necessary.^[2] In a decision issued on March 25, 2003, the IRO reviewer^[3] concluded that Petitioner had not demonstrated that there was a medical need for a lumbar discogram with CT scan. Based on the evidence, the Administrative Law Judge (ALJ) concludes that Petitioner did not meet his burden of proof to show that a lumbar discogram with CT scan would be medically necessary to relieve the effects of Claimant’s injury or promote his recovery, and hereby denies preauthorization of the requested testing procedures.

II.DISCUSSION

It is undisputed that on ___, Claimant suffered a compensable injury to his lower back. However, Claimant has not responded to the conservative treatment he has undergone since the date of injury. He continues to suffer both back and leg pain as a result of his work-related injury and is being administered prescription medication to treat the pain. Since his injury, Claimant has undergone physical therapy and 12 epidural spinal injections which have not relieved his pain. Pet. Exh. 1, pp. 7-12. Claimant was diagnosed as having degenerative disc disease at the L4/L5 and L5/S1 levels, and an extruded disc fragment at the L5/S1 level. In October 2003, Dr. Sazy, an orthopedic surgeon, recommended that Claimant undergo inter-body fusions at the L4/L5 and L5/S1 levels of the spine. Pet. Exh. 1, pp. 7-9. The IRO reviewer agreed that Dr. Sazy’s proposed surgical treatment was appropriate and well-supported by the medical tests that already had been performed.^[4] Carrier Exh. 1, pp. 17-19. Dr. Sazy’s recommendation for surgery was based on the results of two diagnostic tests that were administered less than a year before he made his recommendation. Claimant underwent a myelogram with CT scan on November 11, 2001, and a lumbar spine MRI (magnetic resonance imaging) was performed on August 27, 2002. The IRO reviewer concluded that the spine injuries had been clearly revealed by those tests so additional testing was not necessary to support Dr. Sazy’s treatment recommendation.

In fact, Dr. Sazy acknowledged that he had requested preauthorization of the test in anticipation of the second-opinion review undertaken by insurance carriers in the case of a recommendation for spinal surgery. Dr. Sazy argued that based on his experience, he was certain a second-opinion reviewer would request a discogram, so performing the test now would be more efficient and provide speedier care for Claimant by expediting the review process. In addition, he said that the use of a discogram would help identify all factors contributing to a patient’s condition so all could be treated together, a practice which improves the success rate of back surgeries.

As laudable as Dr. Sazy’s motives may be in using whatever procedures are available to him to aid Claimant and make the system more responsive to Claimant’s medical needs, the fact remains that the need for this particular test at this point is speculative. If the need for surgery based on the current condition of Claimant’s spine is as clear as both Dr. Sazy and the board-certified surgeon employed as the IRO reviewer believe, it is as likely as not that the Carrier’s second-opinion reviewer would arrive at the same conclusion. Further, none of Claimant’s medical records in evidence raised the probability or even suspicion that Claimant may present contributory conditions yet to be identified. In sum, the ALJ concludes that a discogram with CT scan is not medically warranted at this time and should not be preauthorized.

III. Findings of Fact

1. On_________, ____ (Claimant) suffered a compensable injury to his lower back.
2. One Beacon Insurance Company (Carrier) is the workers’ compensation insurance carrier now responsible for appropriate treatment of Claimant’s compensable back injury.
3. Since ___, Claimant has undergone physical therapy and received 12 epidural steroid injections to treat his lower back. Neither course of treatment has succeeded in ending Claimant’s lower back pain. Claimant continues to take prescription pain medication for his lower back and leg pain.
4. A myelogram with CT scan was performed on Claimant on November 11, 2001, and an MRI examination was performed on August 27, 2002. Both tests showed that Claimant had disc herniation at his L4/L5 and L5/S1 spine levels. No other potential conditions that may be contributing to Claimant’s back pain have been identified.
5. In October 2003, John A. Sazy, M.D., an orthopedic surgeon (Petitioner), recommended that Claimant undergo interbody fusions of the L4/L5 and L5/S1 levels of the spine.
6. On December 12, 2002, Petitioner requested preauthorization for a lumbar discogram with CT scan on the basis that results of these tests would, in all likelihood, be required by a second-opinion doctor expected to evaluate Petitioner’s surgery recommendation on behalf of the Carrier.
7. The need for the requested testing is speculative at this time, and the underlying factors for Dr. Sazy’s request for preauthorization have not occurred.
8. On December 18, 2003, Carrier denied preauthorization on the basis that the tests were not medically necessary.
9. Petitioner appealed the Carrier’s denial of benefits to the Medical Review Division (MRD) of the Texas Workers Compensation Commission (TWCC), which referred the dispute to an Independent Review Organization (IRO), Ziroc.
10. On March 25, 2003, Ziroc’s case reviewer, a board-certified orthopedic surgeon, concluded that there was no medical need for the discogram with CT scan as the previous tests had clearly shown the disc herniation and pathology at the L4/L5 and L5/S1 levels of Claimant’s spine which supported the need for interbody fusions at those spine levels. The IRO reviewer recommended against preauthorizing the tests.
11. On April 16, 2003, Claimant filed a timely request for a hearing at the State Office of Administrative Hearings (SOAH) on the MRD decision rendered on its behalf by the IRO.
12. On April 24, 2003, the Commission issued a notice of hearing which included the date, time, and location of the hearing, the applicable statutes under which the hearing would be conducted, and a short, plain statement on the nature of the matters asserted.
13. SOAH Administrative Law Judge Cassandra Church convened a hearing on these issues on July 22, 2003, and the record closed on July 31, 2003, after the parties filed their final arguments in writing.

IV. Conclusions of Law

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code Ann. § 413.031.
2. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a Decision and Order, pursuant to Tex. Labor Code Ann. § 413.031 and Tex. Gov’t Code Ann. ch. 2003.
3. The notice of hearing issued by the Commission was sufficient under the terms of Tex. Gov’t CodeAnn. § 2001.052.
4. Petitioner has the burden of proving by a preponderance of the evidence that it should prevail in this matter, pursuant to Tex. Labor Code Ann. §413.031 and 28 Tex. Admin. Code §148.21(h).
5. The lumbar discogram with CT scan for which Petitioner sought preauthorization is the type of procedure which must be preauthorized according to Tex. Labor Code Ann.§’ 413.015 and 28 Tex. Admin. Code §134.600.
6. Petitioner failed to prove by a preponderance of the evidence that a lumbar discogram with CT scan would be a service reasonably required to relieve the effects of or promote recovery from the compensable injury Claimant suffered, within the meaning of Tex. Labor Code Ann. §§ 408.021 and 401.011(9).

ORDER

IT IS HEREBY ORDERED that Dr. John A. Sazy’s request for preauthorization for a lumbar discogram with CT scan is hereby denied.

Issued August 21, 2003.

________________________________________ CASSANDRA J. CHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. In previous correspondence the responsible Carrier is identified variously as both General Accident Insurance and America First Insurance Company. As One Beacon Insurance identified itself in this hearing as the Carrier now responsible for Claimant’s treatment, the ALJ assumes America First and or General Accident Insurance had been purchased, merged, or undergone one or more name changes before the contested case hearing in this matter commenced.↑
2. Although the language of the utilization reviewer suggests that the Provider failed to properly document his claim, the evidence taken as a whole supported a conclusion that the basis of the denial was a conclusion that the procedure was not medically necessary. That is the basis on which the IRO reviewer analyzed the issue and the argument that the Provider brought forward in the hearing. Carrier Exh. 1, pp. 9-14. In a contested case hearing, a Carrier may not argue grounds for denial that it did not raise in its initial denial.↑
3. The IRO company in this case was Ziroc, a division of ZRC Services, Inc. As is the practice when this company serves as an IRO, Ziroc did not disclose the identity of the reviewer it employed, although he or she was identified as medical doctor board-certified as an orthopedic surgeon. Carrier Exh. 1, p. 9.↑
4. The IRO reviewer’s comments suggest that a disc removal at the L5/S1 level was also supported by Claimant’s test results. It is not clear that Dr. Sazy’s treatment recommendation included this procedure, although it may be understood by the physicians to be an integral part of the recommended fusion treatment. This difference, if there is one, does not appear to be material to the determination of this case since it involves the need for additional testing, not the procedure itself. Pet. Exh. 1, pp. 17-19.↑