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March 30, 2009


March 30, 2009


This case is decided pursuant to Chapter 410 of the Texas Workers’ Compensation Act and Rules of the Division of Workers’ Compensation adopted thereunder.


A contested case hearing was held on March 26, 2009, to decide the following disputed issue:

Whether a preponderance of the evidence is contrary to the Independent

Review Organization's decision denying the requested low pressure discography at the L3-4, L4-5, and L5-S1 spinal levels.


Petitioner and Claimant appeared, and Claimant was represented by Attorney LE; Respondent/Carrier appeared, and was represented by Attorney MK.


Claimant sustained injuries to his left hip, left knee, and low back when he was struck by a forklift within the course and scope of his employment on _______________. Claimant's lumbar injury has been treated with physical therapy and epidural steroid injections, but since these conservative measures have given Claimant no significant relief from his symptoms, Dr. B has recommended proceeding with the multi-level discogram at issue herein. In support of his position regarding this discography, Dr. B testified that it is a pre-surgical test required by applicable licensing authorities, and that failure to perform discography prior to spinal fusion surgery constitutes practicing below the standard of care for an orthopedic surgeon located in Texas. Dr. B further stated that the performance of a presurgical discogram is required by the Official Disability Guidelines' section addressing lumbar fusions, and that there is therefore an internal contradiction in the Guidelines; his implication was that such a conflict should militate in favor of his position in this case.

The Independent Review Organization denied the requested procedure, citing the Official Disability Guidelines' decision not to recommend it.


Section 408.021 of the Texas Labor Code provides that an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Section 401.011(22-a) defines health care reasonably required as “health care that is clinically appropriate and considered effective for the injured employee’s injury and provided in accordance with best practices consistent with: (A) evidence based medicine; or (B) if that evidence is not available, generally accepted standards of medical practice recognized in the medical community.” “Evidence based medicine” is further defined, by Section 401.011(18-a) as the use of the current best quality scientific and medical evidence formulated from credible scientific studies, including peer-reviewed medical literature and other current scientifically based texts, and treatment and practice guidelines in making decisions about the care of individual patients.

In accordance with the above statutory guidance, the Division of Workers' Compensation has adopted treatment guidelines by Division Rule 137.100. This rule directs health care providers to provide treatment in accordance with the current edition of the Official Disability Guidelines (ODG), and such treatment is presumed to be health care reasonably required as defined in the Texas Labor Code. Thus, the focus of any health care dispute starts with the health care set out in the ODG.

With regard to discography, the ODG sets forth the following:

Not recommended. In the past, discography has been used as part of the pre-operative evaluation of patients for consideration of surgical intervention for lower back pain. However, the conclusions of recent, high quality studies on discography have significantly questioned the use of discography results as a preoperative indication for either IDET or spinal fusion. These studies have suggested that reproduction of the patient’s specific back complaints on injection of one or more discs (concordance of symptoms) is of limited diagnostic value. (Pain production was found to be common in non-back pain patients, pain reproduction was found to be inaccurate in many patients with chronic back pain and abnormal psychosocial testing, and in this latter patient type, the test itself was sometimes found to produce significant symptoms in non-back pain controls more than a year after testing.) Also, the findings of discography have not been shown to consistently correlate well with the finding of a High Intensity Zone (HIZ) on MRI. Discography may be justified if the decision has already been made to do a spinal fusion, and a negative discogram could rule out the need for fusion (but a positive discogram in itself would not allow fusion). (Carragee-Spine, 2000) (Carragee2-Spine, 2000) (Carragee3-Spine, 2000) (Carragee4-Spine, 2000) (Bigos, 1999) (ACR, 2000) (Resnick, 2002) (Madan, 2002) (Carragee-Spine, 2004) (Carragee2, 2004) (Maghout-Juratli, 2006) (Pneumaticos, 2006) (Airaksinen, 2006) Discography may be supported if the decision has already been made to do a spinal fusion, and a negative discogram could rule out the need for fusion on that disc (but a positive discogram in itself would not justify fusion). Discography may help distinguish asymptomatic discs among morphologically abnormal discs in patients without psychosocial issues. Precise prospective categorization of discographic diagnoses may predict outcomes from treatment, surgical or otherwise. (Derby, 2005) (Derby2, 2005) (Derby, 1999) Positive discography was not highly predictive in identifying outcomes from spinal fusion. A recent study found only a 27% success from spinal fusion in patients with low back pain and a positive single-level low-pressure provocative discogram, versus a 72% success in patients having a well-accepted single-level lumbar pathology of unstable spondylolisthesis. (Carragee, 2006) The prevalence of positive discogram may be increased in subjects with chronic low back pain who have had prior surgery at the level tested for lumbar disc herniation. (Heggeness, 1997) Invasive diagnostics such as provocative discography have not been proven to be accurate for diagnosing various spinal conditions, and their ability to effectively guide therapeutic choices and improve ultimate patient outcomes is uncertain. (Chou, 2008) Although discography, especially combined with CT scanning, may be more accurate than other radiologic studies in detecting degenerative disc disease, its ability to improve surgical outcomes has yet to be proven. It is routinely used before IDET, yet only occasionally used before spinal fusion. (Cohen, 2005) Discography involves the injection of a water-soluble imaging material directly into the nucleus pulposus of the disc. Information is then recorded about the pressure in the disc at the initiation and completion of injection, about the amount of dye accepted, about the configuration and distribution of the dye in the disc, about the quality and intensity of the patient's pain experience and about the pressure at which that pain experience is produced. Both routine x-ray imaging during the injection and post-injection CT examination of the injected discs are usually performed as part of the study. There are two diagnostic objectives: (1) to evaluate radiographically the extent of disc damage on discogram and (2) to characterize the pain response (if any) on disc injection to see if it compares with the typical pain symptoms the patient has been experiencing. Criteria exist to grade the degree of disc degeneration from none (normal disc) to severe. A symptomatic degenerative disc is considered one that disperses injected contrast in an abnormal, degenerative pattern, extending to the outer margins of the annulus and at the same time reproduces the patient’s lower back complaints (concordance) at a low injection pressure. Discography is not a sensitive test for radiculopathy and has no role in its confirmation. It is, rather, a confirmatory test in the workup of axial back pain and its validity is intimately tied to its indications and performance. As stated, it is the end of a diagnostic workup in a patient who has failed all reasonable conservative care and remains highly symptomatic. Its validity is enhanced (and only achieves potential meaningfulness) in the context of an MRI showing both dark discs and bright, normal discs -- both of which need testing as an internal validity measure. And the discogram needs to be performed according to contemporary diagnostic criteria -- namely, a positive response should be low pressure, concordant at equal to or greater than a VAS of 7/10 and demonstrate degenerative changes (dark disc) on MRI and the discogram with negative findings of at least one normal disc on MRI and discogram. See also Functional anesthetic discography (FAD).

Discography is Not Recommended in ODG.

Patient selection criteria for Discography if provider & payor agree to perform anyway:

o Back pain of at least 3 months duration

o Failure of recommended conservative treatment including active physical therapy

o An MRI demonstrating one or more degenerated discs as well as one or more normal appearing discs to allow for an internal control injection (injection of a normal disc to validate the procedure by a lack of a pain response to that injection)

o Satisfactory results from detailed psychosocial assessment (discography in subjects with emotional and chronic pain problems has been linked to reports of significant back pain for prolonged periods after injection, and therefore should be avoided)

o Intended as a screen for surgery, i.e., the surgeon feels that lumbar spine fusion is appropriate but is looking for this to determine if it is not indicated (although discography is not highly predictive) (Carragee, 2006) NOTE: In a situation where the selection criteria and other surgical indications for fusion are conditionally met, discography can be considered in preparation for the surgical procedure. However. all of the qualifying conditions must be met prior to proceeding to discography as discography should be viewed as a non-diagnostic but confirmatory study for selecting operative levels for the proposed surgical procedure. Discography should not be ordered for a patient who does not meet surgical criteria.

o Briefed on potential risks and benefits from discography and surgery

o Single level testing (with control) (Colorado, 2001)

o Due to high rates of positive discogram after surgery for lumbar disc herniation, this should be potential reason for non-certification

The above-cited section of the ODG does permit discography under limited circumstances. Likewise, the ODG section that addresses spinal fusion allows discography to be used as a presurgical test in place of other listed procedures.[1] However, the fact remains that discography is not a recommended procedure, regardless of the specifics of the case.

While the Orthopaedic Knowledge Update excerpts contained in the record of the Contested Case Hearing do constitute evidence-based medicine that addresses the subject matter of this decision, this documentation also reveals that discography is a controversial procedure, having its proponents and detractors. Given this indication that medical professionals disagree as to the advisability of performing discography, the Hearing Officer is not of the opinion that Petitioner and Claimant have presented sufficient evidence to justify a departure from the ODG and the IRO decision based upon the ODG. A decision in Carrier's favor is therefore appropriate with respect to the sole issue presented for resolution herein.

Even though all the evidence presented was not discussed, it was considered. The Findings of Fact and Conclusions of Law are based on all of the evidence presented.


  1. On _______________, Claimant was employed by (Employer).
  2. On _______________, Employer subscribed to a policy of workers' compensation insurance issued by the Ace American Insurance Company.
  3. On _______________, Claimant sustained an injury arising out of the course and scope

of his employment with Employer.

  • Carrier delivered to Claimant a single document stating the true corporate name of Carrier, and the name and street address of Carrier's registered agent, which document was admitted into evidence as Hearing Officer’s Exhibit Number 2.
  • Claimant's surgeon, Dr. B, M.D., recommended that Claimant undergo a low-pressure discogram at the L3-4, L4-5, and L5-S1 spinal levels.
  • The Independent Review Organization (IRO) determined that the requested services were not reasonable and necessary health care for Claimant's compensable injury of _______________.
  • Discography is not recommended by the ODG.
  • A low-pressure discogram at the L3-4, L4-5, and L5-S1 spinal levels is not health care reasonably required for Claimant's compensable injury of _____________.

    1. The Texas Department of Insurance, Division of Workers’ Compensation, has jurisdiction to hear this case.
    2. Venue is proper in the (City) West Field Office.
    3. A preponderance of the evidence is not contrary to the IRO's decision to the effect that a low-pressure discogram at the L3-4, L4-5, and L5-S1 spinal levels is not health care reasonably required to treat Claimant's compensable injury of _______________.


    Claimant is not entitled to low-pressure discography at the L3-4, L4-5, and L5-S1 spinal levels for his compensable injury of _______________.


    Carrier is not liable for the benefits at issue in this hearing. Claimant remains entitled to medical benefits for the compensable injury in accordance with §408.021.

    The true corporate name of the insurance carrier is ACE AMERICAN INSURANCE COMPANY, and the name and address of its registered agent for service of process is



    SUITE 300

    IRVING, TEXAS 75063

    Signed this 30th day of March, 2009.

    Ellen Vannah
    Hearing Officer

    1. Pre-Operative Surgical Indications Recommended: Pre-operative clinical surgical indications for spinal fusion should include all of the following: (1) All pain generators are identified and treated; & (2) All physical medicine and manual therapy interventions are completed; & (3) X-rays demonstrating spinal instability and/or myelogram, CT-myelogram, or discography (see discography BlueCross BlueShield, 2002)

    End of Document