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July 29, 2002


July 29, 2002


Continental Casualty Company (Carrier) has appealed a decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission). MRD ordered preauthorization for a lumbar discogram to be performed on ___, an injured worker. In this decision, the Administrative Law Judge (ALJ) finds that Carrier has met its burden of showing that the requested treatment is not reasonable and necessary medical care for ___’s compensable injury and should not have been preauthorized by MRD. Accordingly, the ALJ finds that a lumbar discogram should not be preauthorized and Carrier is relieved from the requirements of the MRD decision ordering preauthorization for such treatment.

I. Discussion

___ was an employee of ___. In 2000, while working as a ___, she suffered a compensable injury to her back when catching a patient to keep him from falling. At the time of her injury, Carrier was the workers’ compensation insurance carrier for ___’s employer. ___ received treatment for her injuries, including physical therapy, epidural steroid injections, and pain medication. ___ was referred to Dr. Charles Gordon for a functional capacity evaluation and follow-up treatment. Dr. Gordon concluded that a lumbar discogram was necessary to determine the precise location of ___’s pain and to determine if ___ was an appropriate IDET candidate. Accordingly, Dr. Gordon requested preauthorization for the lumbar discogram.

Carrier denied preauthorization, concluding that there was no medical necessity for an IDET procedure and, thus, no necessity for a lumbar discogram as a diagnostic tool used in investigation of ___’s eligibility for an IDET procedure. Dr. Gordon requested medical dispute resolution through the Commission’s MRD, and MRD concluded that the requested lumbar discogram should be preauthorized. Carrier then requested a hearing before SOAH.

At the hearing, Carrier presented the testimony of Dr. Nicholas Tsourmas, an orthopedic surgeon. Dr. Tsourmas concluded that an MRI would be necessary before a lumbar discogram should be considered. Dr. Tsourmas noted that the only MRI that had been performed on ___ was over two years old and that a repeat MRI should be performed before more extensive testing, such as a lumbar discogram, was conducted. Interestingly enough, Dr. Gordon agreed that a repeat MRI should be conducted first. Dr. Gordon indicated that a lumbar discogram might still be necessary, depending on the outcome of the MRI.

After reviewing the evidentiary record, the ALJ finds that Carrier (as the party requesting a hearing from the MRD decision) has met its burden of proof. Specifically, through the medical records and the testimony of Dr. Tsourmas, Carrier has established by a preponderance of the evidence that the requested treatment is not medically reasonable nor necessary for ___’s compensable injury of ___. Further, Dr. Gordon’s agreement with Dr. Tsourmas that the lumbar discogram was not imminently necessary for ___ establishes that the treatment is not medically necessary. While the ALJ understands Dr. Gordon’s desire to keep the option of a lumbar discogram open in the future (after an MRI or other treatment options are explored), the ALJ does not have such authority. Rather, the ALJ is charged with determining whether the requested procedure is currently medically necessary treatment for ___’s injury. Because all parties agree that other steps should be taken first, before a lumbar discogram is considered, the ALJ can reach only one conclusion: the requested treatment is not medically necessary at this time.

For the foregoing reasons, the ALJ concludes that the requested procedure is not reasonable and necessary medical treatment for ___’s compensable injury, and should not be authorized.

II. Findings of Fact

  1. Claimant ___ suffered a compensable low back injury on _____________At the time of ___’s injury, Continental Casualty Company (Carrier) was the workers’ compensation insurance carrier for ___’s employer.
  2. As a result of the compensable injury, ___ suffered pain in her back.
  3. On or around May 24, 2001, Dr. Charles Gordon, M.D. (Dr. Gordon or Respondent) requested preauthorization for a lumbar discogram to be performed on ___ in order to determine whether she was a candidate for IDET.
  4. Carrier denied Dr. Gordon’s request for preauthorization on August 8, 2001, stating that the lumbar discogram was not medically necessary due to unproven efficacy of the IDET procedure. Dr. Gordon requested reconsideration of Carrier’s decision and the procedure was denied again on September 20, 2001.
  5. Dr. Gordon filed a dispute with the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) on November 1, 2001.
  6. The Medical Review Division issued a Findings and Decision on January 28, 2002, in which an Order for the lumbar discogram was issued.
  7. On January 31, 2002, in response to the MRD’s Findings and Decision, Carrier filed a request for hearing before the State Office of Administrative Hearings.
  8. Notice of the hearing in this case was mailed to the parties on March 28, 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.
  9. Pursuant to the request of the parties, the hearing in this case was continued to July 10, 2002, and all parties received notice of the new hearing date.
  10. The hearing was held on July 10, 2002, with Administrative Law Judge Craig R. Bennett presiding. Carrier appeared through its attorney, Jane Lipscomb Stone. Dr. Gordon appeared personally via telephone along with his representative, Bridget Shelton. The hearing was adjourned the same day, and the record closed on July 25, 2002, when Carrier submitted proposed findings of fact and conclusions of law.
  11. At the time of the hearing, Dr. Gordon wanted to perform the discogram in order to evaluate the claimant as a possible surgery candidate for a level one fusion, rather than for a proposed IDET procedure.
  12. Dr. Gordon had not examined ___ since October 15, 2001 and a repeat MRI has not been performed as of the date of this hearing.
  13. ___ suffers from multi-level degenerative disc disease and exhibited signs of radiculopathy.
  14. ___ suffers from obesity and has several underlying health conditions such as diabetes and, possibly, heart disease.
  15. It would be imprudent to perform a discogram without first determining whether ___’s severe degenerative disc changes have progressed via a repeat MRI study.
  16. The last MRI performed on ___ was June 27, 2000.
  17. A repeat MRI is a more appropriate diagnostic test to perform at this stage of the ___’s injury than a discogram in order to discern ___’s current medical condition.
  18. At the hearing, Dr. Gordon agreed that a repeat MRI is more appropriate for ___ rather than a lumbar discogram at this point in time.
  19. Based on the above findings, it would not be reasonable or medically necessary to perform a lumbar discogram on ___ at this point in time.

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. Carrier timely filed its request for a hearing, 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. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. Ch. 2001 and Tex. Admin. Code §133.305.
  6. Carrier had the burden of proof in its requested hearing by a preponderance of the evidence, pursuant to Tex. Lab. Code Ann. § 413.031 and 28 Tex. Admin. Code §148.21(h).
  7. 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.
  8. Under 28 Tex. Admin. Code §134.600(h)(5), a discogram must be preauthorized, dependent on a showing of medical necessity.
  9. The requested lumbar discogram is not medically necessary and should not be preauthorized. Tex. Lab. Code Ann. §413.014; 28 Tex. Admin. Code §134.600(h)(6).
  10. Based on the above Findings of Fact and Conclusions of Law, Carrier is entitled to relief from the MRD decision, and the request for preauthorization should be denied.


IT IS, THEREFORE, ORDERED that the proposed lumbar discogram is not medically necessary at this time, and preauthorization for such discogram is denied. Continental Casualty Company is not required to reimburse Dr. Charles Gordon, M.D. for any amount relating to the procedure that is the subject of this dispute.

Signed July 29th, 2002.


Administrative Law Judge

End of Document