DECISION AND ORDER

Harris County has appealed a decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission). MRD ordered preauthorization for the reasonable and necessary costs for ambulatory surgical center care to provide___, an injured worker, with a permanent spinal cord stimulator and related treatment. In this decision, the Administrative Law Judge (ALJ) finds that Harris County has failed to meet its burden of showing that the requested treatment was not reasonable and necessary medical care for__’s compensable injury and should not have been preauthorized by MRD. Therefore, the ALJ concurs with the MRD decision, and Harris County is ordered to authorize and reimburse the reasonable and necessary costs associated with the requested treatment.

I. Discussion

___was an employee of Harris County Sheriff’s Department. In___, she suffered a compensable injury to her back and right leg after falling out of a chair. She received treatment for her injuries, was given an MRI in 1998, and was determined to be at maximum medical improvement with 5% impairment. In November 1999, ___received a pain management evaluation by Dr. Jeffrey Charnov, who recommended and performed various treatments for___’s ongoing back and leg pain. Because other treatments were ineffective in resolving___’s complaints of pain, Dr. Charnov determined that providing ___with a permanent spinal cord stimulator was the most appropriate medical treatment. Dr. Charnov requested preauthorization for outpatient surgery for a permanent spinal cord stimulator and home health treatment with IV antibiotics for five days for___.

Harris County denied preauthorization, relying on the opinion of Dr. Patrick Mulroy, who concluded that the requested treatment was appropriate for___’s pain problems, but that such pain problems could not be directly connected to the 1996 compensable injury. Dr. Mulroy noted that____ had two prior surgeries on her back in the early___, and noted that her pain now is more likely attributable to her prior injuries and surgeries rather than her ___injury.

After reviewing the evidentiary record, the ALJ finds that Harris County, as the party appealing the MRD decision, has not met its burden of proof. Specifically, Harris County has failed to establish by a preponderance of neither the evidence that the requested treatment is not medically reasonable nor necessary for___’s compensable injury of___. While Dr. Mulroy concludes that the medical records do not establish that___’s pain problems are directly related to her ___ injury, at least two other physicians conclude otherwise. ___’s treating physician, Dr. Charnov, determined the requested procedure was reasonable and necessary treatment for___’s ___injury; Dr. Robert Lee Brownhill, an independent medical examiner chosen by the Commission, conducted an examination of ___and agreed with Dr. Charnov’s requested treatment. The conclusions of these two physicians, who actually examined ___are more persuasive to the ALJ than the conclusion of Dr. Mulroy, who did not examine ___but rendered his opinion after only reviewing her medical records. Further, the ALJ finds unpersuasive Dr. Mulroy’s conclusion that___’s pain is likely related to her earlier back problems and surgeries from the early ___s. The record is devoid of evidence indicating that ___had any problems related to her back or right leg between the time of her last surgery in 1982 and her compensable injury in___. Given that her problems with pain began after her ___injury, it seems intuitive that the two are related.

For the foregoing reasons, the ALJ concludes that the requested procedure is reasonable and necessary medical treatment for___’s ___compensable injury, and should be authorized.

II. FINDINGS of Fact

1. ___sustained a compensable work-related injury on_______, at which time her workers’ compensation insurance coverage was provided by her employer, Harris County.
2. As a result of the compensable injury,___. suffered pain in her back and right leg.
3. In November 1999, ___received a pain management evaluation by Dr. Jeffrey Charnov, who recommended and performed various treatments for ongoing back pain suffered by___.
4. Because other treatments proved ineffective in resolving___’s complaints of pain, Dr. Charnov determined that implanting a permanent spinal cord stimulator was the most appropriate medical treatment. On July 18, 2001, Dr. Charnov requested preauthorization for outpatient surgery to implant a permanent spinal cord stimulator and home health treatment with IV antibiotics for five days for____.
5. Harris County denied preauthorization, maintaining that the requested treatment was not medically necessary and appropriate treatment for___’s ___injury. Rather, Harris County contended that___’s condition necessitating the treatment was likely the result of pre-injury problems and surgeries.
6. Dr. Charnov requested medical dispute resolution through the Commission’s MRD. The Commission ordered ___to attend a required medical examination under the direction of Dr. Robert Lee Brownhill, an independent health care provider. Dr. Brownhill concluded that the requested treatment was medically reasonable and necessary for___’s compensable work-related injury.
7. The requested outpatient surgery for permanent spinal cord stimulator and home health with IV antibiotics for 5 days is medically reasonable and necessary treatment for___’s injury.
8. MRD reviewed the dispute and issued a decision on November 29, 2001, finding that the requested treatment was medically necessary and ordering Harris County to authorize and pay for the treatment.
9. On December 17, 2001, Harris County appealed the MRD decision to the State Office of Administrative Hearings (SOAH).
10. Notice of the hearing in this case was mailed to the parties on January 31, 2002. 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. In the notice, the Commission’s staff indicated that it would not participate in the hearing.
11. Pursuant to the request of the parties, the hearing in this case was continued to April 23, 2002, and all parties received notice of the new hearing date.
12. The hearing was held on April 23, 2002, with Administrative Law Judge Craig R. Bennett presiding. Harris County appeared through its attorney, Robert Josey. Jeffrey Charnov appeared through his representative, Geneva LeBlanc. ____appeared and represented herself. The hearing was adjourned and the record closed the same day.

III. CONCLUSIONS of Law

1. The Commission has jurisdiction over this matter pursuant to Tex. Lab. Code § 413.031.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
3. Harris County timely filed its notice of appeal, as specified in 28 Tex. Admin. Code §148.3.
4. Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code §2001.052 and 28 Tex. Admin. Code § 148.4.
5. Harris County had the burden of proof on its appeal by a preponderance of the evidence, pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin. Code §148.21(h).
6. Under Tex. Labor Code § 408.021(a), 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.
7. Under 28 Tex. Admin. Code § 134.600(h)(2), outpatient surgical or ambulatory surgical services must be preauthorized, dependent on a showing of medical necessity.
8. Harris County did not prove that the prescribed spinal cord stimulator and home health with IV antibiotics for 5 days is not medically necessary for treating__’s compensable injury.
9. Based on the above Findings of Fact and Conclusions of Law, Harris County’s appeal should be denied, and the request for preauthorization should be granted.

ORDER

IT IS ORDERED THAT the appeal of Harris County is denied. The ALJ concurs with the decision of the Commission’s Medical Review Division ordering preauthorization for spinal cord stimulator and home health with IV antibiotics for 5 days. Harris County is ordered to reimburse all reasonable and necessary covered expenses associated with such treatment.

Signed May 3^rd, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

CRAIG R. BENNETT
Administrative Law Judge