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May 24, 2002


May 24, 2002


___, an injured worker (Petitioner), has appealed a decision of the Medical Review Division (MRD) of the Texas Workers Compensation Commission (Commission). MRD denied preauthorization for the reasonable and necessary costs for a repeat lumbar MRI. In this decision, the Administrative Law Judge finds that Petitioner has shown that the requested repeat lumbar MRI is medically reasonable and necessary and should be approved. Therefore, the MRD decision is overruled, the MRI is preauthorized, and the Facility Insurance Company (Carrier) is ordered to authorize and reimburse the reasonable and necessary costs associated with the procedure.

I. Discussion

Carrier contends the MRD denied the requested testing for three reasons: (1) no documentation; (2) documentation contrary to the treating physician’s broad assertion the testing is needed; and(3) Claimant was being treated in the year 2000 by an associate of the treating physician and there was no change in Claimant’s condition. In particular, the MRD decision referenced a peer review of Claimant’s medical records, conducted by Dr. Benjamin Agana. In the peer review, Dr. Agana states the Claimant’s overall treatment to date has been excessive and extensive for the type of injury: “a lumbar strain on top of preexisting lumbar degenerative disk disease and facet arthropathy.”[1]

The Petitioner’s treating physician, Dr. Dean S. Smith, testified that his patient,___ is experiencing progressive and increased pain, therefore, he needs a recent lumbar MRI in order to determine if the herniated disk is getting worse. Dr. Smith testified that, in properly treating a patient, he would not generally determine what course of action to take on the basis of the Claimant’s existing medical records, chiefly a two-year old MRI. According to Dr. Smith, another MRI is needed to determine what course or type of treatment is necessary, including additional therapy, steroid injections, or even surgery.

After reviewing the evidentiary record, the ALJ finds that the preponderance of the evidence supports Petitioner’s position that the requested testing is medically reasonable and necessary treatment for Petitioner’s compensable injury. Particularly, the ALJ is persuaded by Dr. Smith’s statements that the Claimant’s condition has gotten worse and a new MRI is necessary to determine future treatment. Although there appear to be some gaps in the Claimant’s medical records, there is nothing in the record to indicate the pain is not related to the compensable injury or that a repeat MRI is not a reasonable diagnostic for this type of pain. Moreover, the ALJ will note that the doctor has examined the Claimant, whereas the peer review physician did not. Based on the evidence presented, the ALJ concludes that Petitioner request for a repeat MRI is medically reasonable and necessary treatment.


  1. ___ (Petitioner) sustained a compensable work-related injury on ______, at which time his employer’s workers compensation carrier was the Facility Insurance Company (Carrier).
  2. As a result of the compensable injury, Petitioner suffered pain in his back, neck, and testicle.
  3. Petitioner was seen by Dr. Bieganowski on November 25, 1992 and received heat and modality therapy, physical therapy, and psychological services for pain control.
  4. An MRI dated October 1, 1993, indicated multiple levels of degenerative disk disease and moderate bulging of L5-S1 with facet hypertrophy. The patient continued with electrical stimulation and psychological counseling.
  5. An MRI dated July 28, 1995, showed degenerative changes throughout the lumbar spine, bulging at L4-5, L5-S1, and spinal stenosis.
  6. An MRI dated April 27, 2000, revealed multi-level lower lumbar spine disk desiccation and bulging. The patient had an epidural injection with improvement for one month.
  7. Petitioner’s current treatment consists of home exercise and medications.
  8. Petitioner’s treating physician, Dr. Dean S. Smith, first examined Petitioner on May 17, 2000. Since this date, Petitioner has experienced increased pain.
  9. The Carrier denied preauthorization for an additional lumbar MRI based, in part, upon the peer review of Dr. Benjamin Agana.
  10. Petitioner requested medical dispute resolution through the Commission’s MRD.
  11. Sometime after the April 27, 2000 MRI, Petitioner began experiencing progressive pain in his back and leg.
  12. A current lumbar MRI will allow Petitioner’s treating physician to determine the appropriate treatment to cure and relieve Petitioner’s current symptoms, such as additional therapy, steroid injections, and possible surgery.
  13. A current lumbar MRI is a reasonable method for the treating physician to determine what is the pain generator.
  14. MRD reviewed the dispute and issued a decision on January 24, 2002, finding that a proposed repeat lumbar MRI was not reasonably required and declining to order the Carrier to authorize and pay for the testing.
  15. On February 11, 2002, Petitioner appealed the MRD decision to the State Office of Administrative Hearings (SOAH).
  16. 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.
  17. The hearing was held on April 29, 2002, with Administrative Law Judge Lilo D. Pomerleau presiding. The Carrier was represented by Steven M. Tipton, attorney. Petitioner represented himself and was assisted by ombudsman Juan Mireles. The hearing was adjourned and the record closed the same day.


  1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. ch. 401 et seq.
  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. Petitioner timely filed his 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. Petitioner had the burden of proof on his 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. Based on the above Findings of Fact and Conclusions of Law, Petitioner has shown that an additional MRI is medically reasonable and necessary treatment for his compensable injury.
  8. Based on the above Findings of Fact and Conclusions of Law, Petitioner’s appeal and request for preauthorization should be granted.


IT IS ORDERED THAT the Petitioner___’ appeal and request for preauthorization for an additional MRI is granted and Carrier is ordered to reimburse all reasonable and necessary covered expenses associated with such treatment.

Signed May 24, 2002.


Administrative Law Judge

  1. Carrier Ex. 1 at Bates 14.
End of Document