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At a Glance:
May 20, 2010


May 20, 2010


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 May 18, 2010, to decide the following disputed issue:

  1. Is the preponderance of the evidence contrary to the decision of the Independent Review Organization (IRO) that a low pressure lumbar discogram with CT at L3-4, L4-5 and L5-S1 is not reasonably required health care for the compensable injury of ______________?


Claimant appeared and was assisted by RH, ombudsman. Petitioner/Provider appeared as a witness only without representation. Respondent/Carrier appeared and was represented by JB, adjuster.


Claimant sustained a compensable injury when the bus she was riding was struck by a train operating in the plant. Her treating doctor is Dr. B, MD, a principal in (Healthcare Provider), Petitioner. Dr. B requested preauthorization to perform a three-level discogram at L3-4, L4-5 and L5-S1.

Dr. B’s request was first reviewed by Dr. W, MD, a utilization review agent (URA) for Carrier. Dr. W found that there was no clear documentation of neurologic deficit, muscle atrophy, protective muscle spasm or other abnormality. He went on to say that he found no evidence of a large disc herniation, progressive loss of function, or “anything other than subjective back pain complaints” in the medical records. He found no medical necessity for the requested discogram. The initial denial was appealed. The second URA was Dr. B (2), DO, an orthopedic surgeon. Dr. B (2) concurred with Dr. W that the low pressure lumbar discogram was not medically necessary. Review by an Independent Review Organization (IRO) was requested.

Texas Labor Code Section 408.021 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. Health care reasonably required is further defined in Texas Labor Code Section 401.011 (22a) 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 evidence based medicine or, if evidence based medicine is not available, then generally accepted standards of medical practice recognized in the medical community. Health care under the Texas Workers' Compensation system must be consistent with evidence based medicine if that evidence is available. Evidence based medicine is defined in Texas Labor Code Section 401.011 (18a) to be 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. The Commissioner of the Division of Workers' compensation is required to adopt treatment guidelines that are evidence-based, scientifically valid, outcome-focused and designed to reduce excessive or inappropriate medical care while safeguarding necessary medical care. Texas Labor Code Section 413.011(e). Medical services consistent with the medical policies and fee guidelines adopted by the commissioner are presumed reasonable in accordance with Texas Labor Code Section 413.017(1).

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 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.

The Low Back section of the ODG has the following recommendation regarding discography:

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-SpineCarragee2-SpineCarragee3-SpineCarragee4-SpineCarragee-SpineAiraksinen, 2006) (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 Texas Department of Insurance appointed (Independent Review Organization) as the IRO. (Independent Review Organization) assigned the review to a physician reviewer who was identified as a medical doctor board certified in orthopedic surgery. In upholding Carrier’s denial of the discogram, the physician reviewer wrote:

The patient does not meet the ODG criteria for lumbar spine fusion, and therefore the patient does not meet the ODG criteria for discogram. Lumbar instability is not documented in the patient’s medical record in flexion/extension views. Discography is not recommended in ODG. The request does not conform to ODG, and no explanation has been provided as to why the ODG should not be followed in this patient’s case. The reviewer finds that medical necessity does not exist for Low Pressure Lumbar Discogram With CT L3-S1.

The physician reviewer certified that he relied upon the Official Disability Guidelines & Treatment Guidelines (ODG) and his medical judgment, clinical experience and expertise in accordance with accepted medical standards.

The ODG entry on lumbar fusion states:

Not recommended for patients who have less than six months of failed recommended conservative care unless there is objectively demonstrated severe structural instability and/or acute or progressive neurologic dysfunction, but recommended as an option for spinal fracture, dislocation, spondylolisthesis or frank neurogenic compromise, subject to the selection criteria outlined in the section below entitled, “Gibson-CochraneDeBarard-SpineFritzell-SpineFritzell-SpineDeyo-NEJMGibson-Cochrane/SpineIvar Brox-SpineKeller-SpineFairbank-BMJBagnall-CochraneWeiner-SpineShah-SpineDeyo-SpineDeyo-JAMAIliac crest donor-site pain treatment.

Lumbar fusion in workers' comp patients: In cases of workers' compensation, patient outcomes related to fusion may have other confounding variables that may affect overall success of the procedure, which should be considered. Until further research is conducted there remains insufficient evidence to recommend fusion for chronic low back pain in the absence of stenosis and spondylolisthesis, and this treatment for this condition remains “under study.” It appears that workers’ compensation populations require particular scrutiny when being considered for fusion for chronic low back pain, as there is evidence of poorer outcomes in subgroups of patients who were receiving compensation or involved in litigation. (Fritzell-SpineHarris-JAMADeBerard-SpineTrief-SpineCarreon, 2009)

Lumbar fusion for spondylolisthesis: Recommended as an option for spondylolisthesis. Patients with increased instability of the spine after surgical decompression at the level of degenerative spondylolisthesis are candidates for fusion. (Pearson, 2010)

Lumbar fusion for Scheuermann's kyphosisLonner, 2007)

Patient Selection Criteria for Lumbar Spinal Fusion:

For chronic low back problems, fusion should not be considered within the first 6 months of symptoms, except for fracture, dislocation or progressive neurologic loss. Indications for spinal fusion may include: (1) Neural Arch Defect - Spondylolytic spondylolisthesis, congenital neural arch hypoplasia. (2) Segmental Instability (objectively demonstrable) - Excessive motion, as in degenerative spondylolisthesis, surgically induced segmental instability and mechanical intervertebral collapse of the motion segment and advanced degenerative changes after surgical discectomy. [For excessive motion criteria, see AMA Guides, 5th Edition, page 384 (relative angular motion greater than 20 degrees). (ODG Indications for Surgery -- Discectomy.)

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 compelted (sic); & (3) X-rays demonstrating spinal instability and/or myelogram, CT-myelogram, or discography (see BlueCross BlueShield, 2002)

In accordance with Division Rule 133.308 (t), "A decision issued by an IRO is not considered an agency decision and neither the Department nor the Division are considered parties to an appeal. In a Contested Case Hearing (CCH), the party appealing the IRO decision has the burden of overcoming the decision issued by an IRO by a preponderance of evidence-based medical evidence."

Dr. B disagrees that Claimant does not meet the ODG criteria for a lumbar discogram, contending that it is because he intends it as a confirmatory test – if it is negative it would rule out the need for a fusion. He also disagrees that spinal fusion is not indicated for Claimant. Dr. B testified that Claimant has mechanical low back pain that has not responded to conservative treatment and, therefore, is a candidate for fusion. There is, however, no evidence that Claimant has segmental failure with progressive degenerative changes, loss of height, and disc loading capability. Nor does Claimant’s condition meet any other segment of the patient selection criteria for fusion.

In determining the weight to be given to the opinion of an expert, a trier of fact must first determine if the expert is qualified to offer it. The trier of fact must then, however, determine whether the opinion is relevant to the issues at bar and whether it is based upon a solid foundation. An expert's bald assurance of validity is not enough. See Black v. Food Lion, Inc., 171 F.3rd 308 (5th Cir. 1999).

In weighing the evidence presented in this matter, the hearing officer finds that while there may be some support for Dr. B’s assertions and opinions, the preponderance of the evidence supports the IRO physician reviewer’s conclusion that a lumbar discogram is not medically necessary in this instance. There has been no agreement between the parties to do a discogram nor is there a pending lumbar fusion. A positive discogram would not support a request for fusion as currently contemplated by Dr. B and the evidence presented fails to show that Claimant meets the patient selection criteria for a lumbar fusion as set forth in the ODG. Dr. B testified that a negative discogram would result in a request for preauthorization of a lumbar fusion and it would appear that the IRO physician reviewer is correct when he says that the medical records do not support the need for lumbar fusion. Although there is evidence that some studies support discography, the ODG explicitly recommends against the procedure. The preponderance of the evidence is not contrary to the IRO recommendation.

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. The parties stipulated to the following facts:

A.Venue is proper in the (City) Field Office of the Texas Department of Insurance, Division of Workers’ Compensation.

B.On ______________, Claimant sustained a compensable injury while the employee of (Employer).

C.The Texas Department of Insurance appointed (Independent Review Organization) as the IRO in this matter to review Carrier’s denial of the requested low pressure discogram with CT at L3-4, L4-5, and L5-S1.

D.The IRO upheld Carrier denial of the requested procedure.

  • 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.
  • Discography is not recommended in the ODG.
  • The parties have not agreed to perform a discogram despite the negative recommendation in the ODG.
  • Claimant has not requested preauthorization of a lumbar fusion in this matter and the discogram requested is not intended to exclude a disc level from a planned spinal fusion surgery.
  • The discography requested is intended to act as a pre-operative screening tool and its use as such is not recommended in the ODG.
  • Low pressure discography with CT at L3-4, L4-5 and L5-S1 is not reasonably required medical treatment for the 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) Field Office.
    3. The preponderance of the evidence is not contrary to the decision of IRO that low pressure discography with CT at L3-4, L4-5 and L5-S1 is not reasonably required medical care for the compensable injury of ______________.


    Claimant is not entitled to low pressure discography with CT at L3-4, L4-5 and L5-S1 as reasonably required medical care for the 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 COMMERCE & INDUSTRY INSURANCE COMPANY and the name and address of its registered agent for service of process is



    AUSTIN, TX 78701-3232

    Signed this 20th day of May, 2010.

    Hearing Officer

    End of Document