DECISION AND ORDER

___ (Claimant) challenged the decision of Security Insurance of Hartford (Carrier), denying preauthorization for a lumbar discogram. The Administrative Law Judge (ALJ) finds that Claimant met his burden of showing that the requested procedure is reasonable and necessary medical care and should be preauthorized. Therefore, the ALJ orders Carrier to authorize the requested lumbar discogram.

The hearing convened and closed on March 8, 2004, before ALJ Steven M. Rivas. Claimant appeared and was assisted by Luz Loza, Ombudsman. Sandra M. Chada, a certified translator, provider translation for Claimant. Carrier appeared and was represented by William E. Weldon, attorney.

I. DISCUSSION

Background Facts

Claimant sustained a compensable back injury on ___. As part of his treatment, Claimant underwent physical therapy, epidural steroid injections (ESI), facet injections, and an MRI examination on April 8, 2003. Claimant’s treating doctor recommended Claimant undergo a lumbar discogram, and Carrier denied preauthorization as not medically necessary. The dispute was referred to an Independent Review Organization (IRO), which agreed with Carrier. Provider appealed the IRO decision to the State Office of Administrative Hearings.

Applicable Law

Pursuant to the Texas Workers’ Compensation Act (“the Act”), TEX. Lab. Code Ann. § 408.021et seq., an employee who sustains a compensable injury is entitled to all 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.

Under Tex. Lab. Code Ann. § 401.011(19), health care includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.

Certain categories of health care identified by the Commission require preauthorization, which is dependant upon a prospective showing of medical necessity under § 413.014 of the Act and 28 Tex. Admin. Code (TAC) § 134.600. In this instance under 28 TAC § 134.600(h)(7), preauthorization is required for the discogram requested by Claimant.

Evidence and Analysis

The requested lumbar discogram should be authorized in this case based on the results of Claimant’s MRI and lack of effectiveness of other conservative treatment. Following the injury, Claimant was initially treated with medication, to no avail. Subsequently, Claimant was referred to Robert Urrea, M.D., who recommended a physical therapy program, which Clamant completed with inconclusive results. Some of Dr. Urrea’s records indicated that Claimant experienced some benefit from the program. However, both Claimant and Dr. Urrea testified at the hearing that the therapy program only benefitted Claimant “temporarily.”

On April 8, 2003, Claimant underwent an MRI examination, which revealed bulging discs and mild stenosis at the L3-L4, and L4-L5 regions of Claimant’s spine. Based on the results of the MRI, Dr. Urrea diagnosed Claimant with internal disc derangement with disc protusion, and requested a discogram.

Dr. Urrea’s initial requests for a discogram were denied because Claimant had not undergone other modalities like ESIs or facet injections. Therefore, in September 2003, Claimant underwent both an ESI and facet injection, which brought only very temporary pain relief. Claimant’s diagnosis has not changed and continues to suffer from low back pain.

Dr. Urrea testified that Claimant’s previous non-operative treatment has failed to bring any relief to Claimant, and that further conservative treatment will also fail to bring any relief. Dr. Urrea further asserted that Claimant is now a candidate for spinal surgery, and the requested discogram will allow Dr. Urrea to confirm that the pain in Claimant’s back is coming from Claimant’s bulging discs at the L3-L4 and L4-L5 regions.

Carrier relied mainly on the IRO report, dated July 18, 2003, and a report from Barry L. Cromer, M.D., dated August 21, 2003. Both reports essentially recommend denial of the discogram because Claimant had not yet undergone other non-invasive modalities. However, subsequent to both reports, Claimant had ESI injections and facet injections, which brought no relief to Claimant. At the hearing, Carrier presented very little new evidence that differed from the IRO and Dr. Cromer’s report.

The ALJ was convinced by the Claimant’s arguments. The requested discogram should be preauthorized.

II. FINDINGS OF FACT

1. ___ (Claimant) sustained a compensable back injury on ___.
2. Claimant initially underwent medication treatment in order to treat his injury, to no avail.
3. Claimant was referred to Robert Urrea, M.D., who treated Claimant with various modalities including physical therapy, epidural steroid injections, facet injections, and an MRI examination.
4. The MRI resulted revealed bulging discs and mild stenosis at the L3-L4, and L4-L5 regions of Claimant’s spine.
5. Dr. Urrea diagnosed Claimant with internal disc derangement with disc protusion, and requested a lumbar discogram.
6. Claimant sought preauthorization for the lumbar discogram from Security Insurance Company of Hartford (Carrier), which was denied.
7. Claimant sought medical dispute resolution with the Texas Workers’ Compensation Commission’s Medical Review Division, which referred this matter to an Independent Review Organization (IRO). The IRO report concurred with Carrier and denied preauthorization.
8. Claimant timely requested a hearing before the State Office of Administrative Hearings (SOAH).
9. Notice of the hearing in this case was mailed to the parties on November 13, 2003. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
10. The hearing convened and closed on March 8, 2004, before Steven M. Rivas, Administrative Law Judge (ALJ). Claimant appeared and was assisted by Luz Loza, Ombudsman. Carrier appeared and was represented by William E. Weldon, attorney. The hearing was adjourned and the record closed the same day.
11. All of Claimant’s non-operative treatment has failed to bring Claimant any pain relief.
12. Claimant is a candidate for surgical intervention at this time, and the discogram will allow his treating doctor to confirm that Claimant’s pain is coming from the bulging disc in Claimant’s L3-L4 and L4-L5 regions.

II. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001et seq.
2. SOAH has jurisdiction over 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.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052, and 28 Tex. Admin. Code §148.4.
4. The Claimant, as Petitioner, had the burden of proof in this matter under 28 Tex. Admin. Code §148.21(h).
5. Under Tex. Lab. Code Ann. §408.021(a), an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury that: (1) cures or relieves the effects naturally resulting from the compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment..
6. Claimant has shown, by a preponderance of the evidence, that the requested discogram is medically necessary to treat Claimant’s compensable injury.
7. Pursuant to the foregoing Findings of Fact and Conclusions of Law, Claimant is entitled to have the requested lumbar discogram approved by Carrier.

ORDER

IT IS, THEREFORE, ORDERED that the requested lumbar discogram be preauthorized.

Signed March 29, 2004.

STEVEN RIVAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS