DECISION AND ORDER
I. DISCUSSION
John Sazy, M.D., (Petitioner) requested a hearing following an adverse determination by the Texas Workers’ Compensation Commission (Commission) acting through the Texas Medical Foundation, an Independent Review Organization (IRO), denying the preauthorization request of Petitioner to perform a lumbar myelogram and post-myelogram CT scan on T.R.B. (Claimant).[1]
This decision grants the relief sought by Petitioner.
A hearing convened on February 18, 2004, before Administrative Law Judge (ALJ) Howard S. Seitzman. Petitioner appeared pro se. James Sheffield represented Houston General Insurance Company (Respondent). Petitioner testified on his own behalf and Charles Crane, M.D., testified for Respondent. There were no contested issues of notice or jurisdiction. The record closed on February 23, 2004.
Claimant sustained a work-related injury on or about May 29, 1991. It is undisputed that Claimant suffered injuries to his spine, including his lumbar area, L4-5 and L5-S1. A July 19, 1991 MRI revealed subligament bulging of the L4-5 and L5-S1 intervertebral discs. A cervical, thoracic and lumbar myelogram with a post-myelogram CT scan was performed on December 30, 1998. The impression of Shelley Rosenbloom, M.D., was that the lumbar study was normal. Claimant underwent a lumbar discogram and a discographic lumbar CT scan on April 6, 1999. Richard A. Suss, M.D., a neuroradiologist, concluded Claimant had a morphologic disc disruption and concordant pain responses at L4-5 and L5-S1. Petitioner first examined Claimant on or about July 23, 1999. In notes from a November 9, 1999, examination, Petitioner recorded Claimant’s lumbar and cervical pain. Claimant continued to work and successfully avoided surgery for a number of years by use of medications, physical therapy, and other treatments, including facet injections.
By June 2003, the medications and facet injections were no longer controlling the pain. On June 25, 2003, Craig B. Danshaw, D.O., the physician administering Claimant’s paralumbar facet injections, noted that Claimant was scheduled to see Petitioner for an orthopedic surgical consult. On June 26, 2003, Dr. Danshaw recorded that Claimant’s lumbar pain was increasing.[2] He remarked that Claimant’s pain was seven, moderately severe, on a scale of ten.
Petitioner’s notes from a July 23, 2003 examination of Claimant reflected L4-5 and L5-S1 discogenic pain and the need for an MRI or CT myelogram on the next visit if back pain continued. An examination on September 10, 2003, noted lumbar pain and a plan for a CT myelogram of the lumbar spine.
Respondent contended Claimant’s condition had not changed and that the records did not reflect that Claimant had changed his mind and was considering surgery.
The requested procedure is a diagnostic procedure to determine what changes may have occurred to Claimant’s spine. The failure of the facet injections to relieve pain is indicative of a possible physiological change in the lumbar region. Both Petitioner and Dr. Crane, Respondent’s expert, agreed that the diagnostic procedure requested by Petitioner is less invasive than the repeat procedure suggested by the IRO.
Petitioner had the burden of proof in this proceeding. Petitioner proved that preauthorization for a lumbar myelogram and post-myelogram CT scan on Claimant is reasonable and medically necessary as of the date of the hearing.
II. FINDINGS OF FACT
- T.R.B. (Claimant), sustained a work-related injury on or about May 29, 1991.
- Claimant suffered injuries to his spine, including his lumbar area, L4-5 and L5-S1.
- Claimant experienced lumbar and cervical pain.
- A July 19, 1991 MRI revealed subligament bulging of the L4-5 and L5-S1 intervertebral discs.
- A cervical, thoracic and lumbar myelogram with a post-myelogram CT scan was performed on December 30, 1998, and the lumbar study was reported as normal.
- Claimant underwent a lumbar discogram and a discographic lumbar CT on April 6, 1999.
- Claimant had a morphologic disc disruption and concordant pain responses at L4-5 and L5 S1.
- John Sazy, M.D., (Petitioner) first examined Claimant on or about July 23, 1999.
- Despite pain, including lumbar pain, Claimant continued to work and successfully avoided surgery for a number of years by use of medications, physical therapy, and other treatments, including facet injections.
- By June 2003, the medications and facet injections were no longer controlling the pain.
- On June 25, 2003, Craig B. Danshaw, D.O., the physician administering Claimant’s paralumbar facet injections, noted that Claimant was scheduled to see Petitioner for an orthopedic surgical consult.
- On June 26, 2003, Dr. Danshaw recorded that Claimant’s lumbar pain was increasing. Claimant’s pain was seven, moderately severe, on a scale of ten.
- Petitioner’s notes from a July 23, 2003 examination reflect L4-5 and L5-S1 discogenic pain and a need for an MRI or CT myelogram next visit if back pain continues.
- An examination on September 10, 2003, noted lumbar pain and a plan for a CT myelogram of the lumbar spine.
- The requested procedure is a diagnostic procedure to determine what changes may have occurred to Claimant’s spine.
- The failure of the facet injections to relieve pain is indicative of a possible physiological change in the lumbar region.
- The diagnostic procedure requested by Petitioner is less invasive than the repeat procedure suggested by the Independent Review Organization (IRO) and will yield the same or better information regarding the Claimant’s physiology.
- Houston General Insurance Company (Respondent) denied the preauthorization request for a lumbar myelogram and post-myelogram CT scan on Claimant.
- By letter dated December 12, 2003, the Texas Workers’ Compensation Commission (Commission) acting through the Texas Medical Foundation, an IRO, denied the preauthorization request of Petitioner for a lumbar myelogram and post-myelogram CT scan on Claimant.
- Petitioner timely requested a hearing to contest the Commission’s decision.
- By letter dated January 16, 2004, the Commission issued a notice of hearing.
- Administrative Law Judge Howard S. Seitzman convened a hearing on February 18, 2004, in the hearing rooms of the State Office of Administrative Hearing. The record closed on February 23, 2004.
- Petitioner appeared pro se. James Sheffield represented Respondent.
III. CONCLUSIONS OF LAW
- The Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. ‘ 413.031.
- 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.
- The IRO decision is deemed a Decision and Order of the Commission.
- Petitioner timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code (TAC) ” 102.7 and 148.3.
- Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
- 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).
- Petitioner had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC ” 148.21(h) and (i); 1 TAC ‘ 155.41(b).
- A lumbar myelogram and post-myelogram CT scan procedure for Claimant is reasonable and medically necessary.
ORDER
THEREFORE IT IS ORDERED that Petitioner’s request for relief is GRANTED and the preauthorization of a lumbar myelogram and post-myelogram CT scan procedure on T.R.B. is GRANTED.
Signed February 24, 2004.
HOWARD S. SEITZMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS