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December 16, 2002


December 16, 2002


__ (Petitioner) appealed a decision by the Texas Medical Foundation, an independent review organization (IRO), which denied preauthorization for Petitioner to obtain a third Magnetic Resonance Image (MRI) of her lumbosacral spine. The IRO concluded that a third MRI was not medically necessary because there had been no change in Petitioner’s orthopedic or neurologic objective findings since her last MRI. This decision also finds that a third MRI is not medically necessary at this time. Therefore, it upholds the IRO’s decision and denies Petitioner’s appeal.


No party challenged jurisdiction, venue, or notice. Therefore, those matters are addressed in the findings of fact and conclusions of law without discussion here.


Administrative Law Judge (ALJ) Thomas H. Walston convened a hearing in this matter on December 2, 2002, at the State Office of Administrative Hearings, William Clements State Office Building, 300 W. 15th Street, Austin, Texas. __appeared in person and was assisted by TWCC Ombudsman Barton Levy. Attorney Peter Macaulay represented Respondent Insurance Company of the State of Pennsylvania (Carrier). The Texas Workers' Compensation Commission (TWCC) did not appear at the hearing. The ALJ concluded the hearing and closed the record the same day.


1. Introduction

___ is a 27-year-old female who sustained a work related injury to her back on___, __, while lifting items as a cashier at___. __. was diagnosed with a sprained upper back, but she also complained of low back pain. She underwent a lumbar spine MRI on January 17, 1995, which revealed degeneration at L5-S1, and a second MRI on May 28, 1997, which showed degeneration at L5-S1 with a central annular bulge without herniation. Since the time of her injury in__,__ has been treated off-and-on with medication and physical therapy.

__continues to complain of pain in her low back, and on March 25, 2002, Dr. Lori Wasserburger requested a third MRI. Carrier denied the request and__. appealed to the IRO. The IRO conducted an independent review and on August 9, 2002, issued a decision that an additional MRI is not necessary to treat__’s condition. This appeal followed.

Petitioner’s Contentions and Evidence

__ testified at hearing that she injured her back due to lifting merchandise out of customer baskets while working at___. The pain gradually increased and she reported it to her supervisor. The carrier accepted the injury and has paid reimbursement for medical treatment. She has undergone physical therapy and sacroiliac joint injections in the past, and currently she takes Vicodin, Xanodex, and Celebrex, as needed. __understands that her current doctor wants a third MRI to determine what course of treatment to provide.

__now experiences occasional sharp pain in her lower right back. This generally occurs when she bends forward and sometimes it extends into her right buttocks. The pain gets better and worse from time to time. __ quit working at __ in early 1995. Since that time she has worked at various jobs. At present, she works for a contractor to General Motors.

__also offered various documents into evidence. These include the MRI report for May 28, 1997, which states:

Stable degenerative L5-S1 central annular bulge without herniation or mechanical neural element compromise, and with no change since 1-17-95. Otherwise negative scan.

A Letter of Medical Necessity from Dr. Lori Wasserburger, dated June 26, 2002, states in relevant part:

. . . The patient last had diagnostic imaging in 1995. The MRI demonstrated a minor bulge at L5-S1, but no significant focal protrusion. . . . Her examination at this point demonstrated very focal pain, more so at the right greater than left, lumbosacral junction and right “sacroiliac joint”proper. . . . While her neurologic examination remained normal, this is not the only indication for proceeding with further diagnostic imaging. With a change in pain intensity and increasing difficulty for the patient to function in her activities of daily living and work (which she has been doing for the last several years since her work related injury), th[e]n this is appropriate. . . . Due to these episodic increases in low back pain which seem to be worsening and the conservative measures not completely making them go away and the period of time since her last imaging, I feel it is appropriate and medically necessary for us to proceed with a second MRI of the lumbar spine. . . .

An October 1, 2002, letter from__.’s current treating doctor, Harold D. Lewis, D.O., states:

Ms. __is a patient of Family Practice & Rehab. Clinic who suffered a worker’s compensation injury on__. She is currently experiencing right-sided sacroiliac pain. An updated MRI of the right pelvis would help evaluate degenerative changes to the area since her last one several years ago.

Based on this testimony and documentary evidence, __. contends that a third MRI is medically necessary and that it is unjust for the Carrier to deny preauthorization. __also argues that she is a proper party to this proceeding and that she needs only to prove her case by a preponderance of the evidence, not by the great weight of the evidence as Carrier contends. She cites a decision of the TWCC Appeals Panel in Appeal No. 021958-s in support of her position.

Carrier’s Contentions and Evidence

Carrier contends that a repeat MRI is not medically necessary. It did not present any testimony but instead relied on documentary evidence. Carrier first cites the IRO report, which stated the rationale for denying preauthorization:

[T]his patient has had symptoms suggestive of low back pain with little to no evidence of a radiculopathy or structural abnormality, which would result in spine surgery. The patient has undergone MRI study of the lumbar spine in 1995 with a repeat study in 1997 with both MRIs showing the presence of ordinary diseases of life in the form of degenerative disc disease. Medical information subsequent to 1997 does not indicate any objective neurologic or orthopedic deficits that would suggest an alteration in the physical integrity of the lumbar spine. The patient has had reports of increasing pain that have varied. She has been identified with pain that has been located in the sacroiliac area. There has been minimal to no indication of radicular pain. Based on the lack of any objective identified change in the patient’s orthopedic or neurologic objective findings as well as two prior MRI studies indicating no progression between 1995 and 1997, there is no established medical necessity for the third MRI study to be performed of the lumbosacral area.

Carrier’s documents also include an undated peer review by Dr. Melissa D. Tonn, which also concludes that a third MRI is not medically necessary:

. . . I am perplexed as to the reasoning provided in support of the request for yet a third MRI study. It is clear from the records that Ms. __had identified age-related, pre-existent degenerative changes on the initial MRI study from 1995 and those changes were described as stable some 3 years post-presumed occupational injury on

a repeat study in 1997. How then would a third study be medically reasonable or justified for evaluation of presumptive pathology resulting from a one-time lifting incident which purportedly occurred in__? . . .

Based on a review of the medical records, there is no medical evidence to support that a third lumbar MRI study is either reasonable or required for the evaluation of a

presumptive nonspecific lumbar sprain/strain event in__.The prevailing medical

evidence would provide that such an unverified soft tissue injury would have reasonably resolved in 4-6 weeks, not 4-6 years! The request is duplicative, especially in view of a documented lack of neurologic change and by the fact that the treating physician has already reasoned that she does not believe that the degenerative spinal disc pathology previously identified is even the cause of Ms. HCs ongoing symptomatology.

In closing statements, counsel for Carrier also argued that __is not a proper party to this proceeding because she is not a “Requestor” or “Party” as defined in TWCC Rules 133.308(c)(2) and 134.600(a)(6). In addition, Carrier argues that, because the IRO decision has “presumptive weight” under TWCC Rule 133.308(v), __must prove her case by “the great weight of the evidence.”



The ALJ agrees with__ that she is a proper party to this proceeding and that her burden of proof is by a preponderance of the evidence, rather than the great weight of the evidence. However, the ALJ concludes that a third lumbar MRI is not medically necessary for the treatment of__ at this time. Therefore, the ALJ declines to order preauthorization.

Party Status: Concerning party status, the Carrier cites TWCC Rule 133.308(c)(2), which provides:

(c) Parties. The following persons are allowed to be requestors and respondents in medical necessity dispute resolution:

. . .

(2) in a prospective preauthorization dispute B persons or entities as established in §134.600 of this title (relating to Procedure for Requesting Pre-Authorization of Specific Treatments and Services).

Carrier then cites Rule 134.600(a)(6), which provides:

(a) The following words and terms, used in this section shall have the following meanings, unless the context clearly indicates otherwise:

. . .

(6) Requestor: the health care provider or designated representative, including office staff or a referral health care provider/health care facility who requests preauthorization, concurrent review or voluntary certification.

Because the definition contained in 134.600(a)(6) does not include “employee,” Carrier argues that__. is not allowed to maintain party status in this proceeding. However, other parts of Rule 134.600 show that an employee is a party entitled to seek preauthorization and to appeal. In particular, 134.600(e) provides:

(e) The requestor or employee shall request and obtain preauthorization from the carrier prior to providing or receiving health care listed in subsection (h) of this

section. . . .[1]

Further, 134.600(g) provides:

(g) If the response is denial of preauthorization the requestor or employee may request reconsideration of the denied health care. . . .

(1) The requestor or employee may, within 15 working days of receipt of a written denial, request the carrier to reconsider the denial and shall document the reconsideration request.

. . .

(3) The requestor or employee may appeal the denial of a reconsideration request by filing in accordance with Texas Labor Code § 413.031 and 133.305 of this title, (relating to Medical Dispute Resolution). . . .

Rule 133.308(c)(2), cited by Carrier, refers to 134.600 in its entirety, not just 134.600(a)(6), and these other provisions of 134.600 make clear that the employee is a proper party to a prospective preauthorization medical necessity dispute. Therefore, the ALJ finds that__. is a proper party to this proceeding.

Burden of Proof: The ALJ also finds that Petitioner’s burden of proof in this case is by a preponderance of the evidence, not the great weight of the evidence as urged by Carrier. Carrier bases its argument on Rule 133.308(v), which provides:

(v) In all appeals from reviews of prospective or retrospective necessity disputes, the IRO decision has presumptive weight.

In response, J.H. cites TWCC Appeals Panel Decision No. 121958-s, which rejected this same argument made by the carrier in that case. The Appeals Panel pointed out that the rule does not specify the quantum of evidence required to overcome the presumptive weight accorded the IRO decision, and that there also is no explanation in the preamble to the rule. Therefore, the Appeals Panel relied on common law and cited the following language from GMC v. Saenz, 873 S.W.3d 353, 359 (Tex. 1993):

The presumption is subject to the same rules governing presumptions generally. Its effect is to shift the burden of producing evidence to the party against whom it operates. [Citation omitted] Once that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears and “is not to be weighed or treated as evidence.” [Citation omitted.] The evidence is then evaluated as it would be in any other case. [Citation omitted.] The presumption has no effect on the burden of persuasion. [Citation omitted.]

Based on this language, the Appeals Panel concluded that, in the absence of language in the agency rule specifying a quantum of evidence necessary to overcome the presumption, the usual

burden of proof applicable to a case will apply.

The ALJ finds the Appeals Panel’s discussion persuasive and agrees with __that her burden of proof is by a preponderance of the evidence and not by the great weight of the evidence as suggested by Carrier.

Medical Necessity: Under the Texas Workers’ Compensation Act,__ is entitled to all health care reasonably required by the nature of her injury. She is specifically entitled to health care that is reasonably required to cure or relieve the effects naturally resulting from her compensable injury, to promote recovery, or to enhance her ability to return to or retain employment. Tex. Lab. Code Ann. §408.021(a). Health care includes all reasonable and necessary medical services, appliances, and supplies. Tex. Lab. Code Ann. §401.011(19)(A). An MRI is an approved diagnostic procedure, 28 TAC § 134.1001(f)(2)(F), but a repeat MRI requires preauthorization because its cost exceeds $350.00. 28 TAC § 134.600(h)(6).

The Spine Treatment Guideline does not specifically address when a repeat MRI is warranted. Dr. Wasserburger and Dr. Lewis essentially contend that __needs a repeat MRI because it has been a long time since her last one and they would like to see what changes might have occurred in her spine.

But Dr. Wasserburger concedes that__ has no neurologic abnormalities and it appears that she was not aware of the second MRI performed on __in 1997. Instead, she only refers to the 1995 MRI and states that a second MRI would be appropriate. But Carrier’s consultant has pointed out that the second MRI performed in 1997 showed no changes in__’ s low back, which tends to undercut Dr. Wasserburger’s analysis. Further, Dr. Lewis’request simply states that an updated MRI might help evaluate degenerative changes in__’s low back, but he does not explain how this is medically necessary or how it will assist him in treating__.

__’s doctors do not provide an adequate explanation of why a third MRI is medically necessary. Further, __has no symptoms, except occasional low back pain while bending forward, and no abnormal neurological findings to suggest nerve root impingement. Therefore, the ALJ finds that Petitioner failed to present sufficient evidence that a third lumbosacral MRI is reasonably necessary at this time. The ALJ is reluctant to overrule a treating physician’s request for diagnostic studies such as an MRI. But under the facts of this case, there simply has been no showing that a third MRI is medically necessary for __. Therefore, the ALJ upholds the IRO decision and denies Petitioner’s appeal.


  1. __suffered a compensable injury to her low back on____, in the course and scope of her employment with___.
  2. At the time of__’s compensable injury, ____was insured by The Insurance Company of the State of Pennsylvania for workers’ compensation claims.
  3. Dr. Lori Wasserburger began treating__ for her compensable injury in early__.
  4. On January 17, 1995, an MRI was performed on__‘s lumbosacral spine. The MRI showed degenerative changes at L5-S1.
  5. On May 28, 1997, a second MRI was performed on __’lumbosacral spine. This MRI showed no change since the 1995 MRI.
  6. On March 25, 2002, Dr. Wasserburger requested preauthorization for a third MRI for__ due to episodic increases in low back pain.
  7. Other than low back pain on bending forward, __has not displayed any symptoms concerning her low back. In particular, __’s neurologic examination is normal.
  8. A third MRI is not medically necessary for __at this time.
  9. Carrier denied preauthorization for __to obtain a third MRI.
  10. The Texas Medical Foundation, an independent review organization (IRO) conducted an independent review of Dr. Wasserburger’s request, and on August 9, 2002, issued a decision that an additional MRI of __’s lumbar spine is not necessary to treat her condition.
  11. __timely appealed the IRO decision.
  12. Notice of hearing was sent September 18, 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.
  13. The hearing was held December 2, 2002, with Administrative Law Judge (ALJ) Thomas H. Walston presiding. __appeared in person and was assisted by TWCC Ombudsman Barton Levy. Attorney Peter Macaulay represented Respondent Insurance Company of the State of Pennsylvania (Carrier). The Texas Workers' Compensation Commission did not appear at the hearing. The ALJ concluded the hearing and closed the record the same day.


  1. The Texas Workers’Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’Compensation Act, Tex. Lab. Code Ann. §§ 402.073 and 413.031.
  2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. §§ 402.073 and 413.031, and Tex. Gov’t Code Ann. Ch. 2003.
  3. Petitioner timely requested a hearing pursuant to 28 Tex. Admin. Code §§ 133.308(t), 134.600(g), and 148.3.
  4. The parties received adequate and timely notice of the hearing pursuant to Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
  5. Petitioner __has the burden of proof by a preponderance of the evidence pursuant to 28 Tex. Admin. Code § 148.21(h).
  6. Based on Findings of Fact Nos. 4 - 8, a repeat MRI of __’s lumbosacral spine is not reasonably required to treat __’s compensable injury at this time. Tex. Lab. Code Ann. §408.021; 28 Tex. Admin. Code §134.600.
  7. Based on Conclusion of Law No. 6, preauthorization is denied for a repeat MRI of __’s lumbosacral spine as requested by Dr. Lori Wasserburger.


IT IS, THEREFORE, ORDERED that preauthorization is hereby denied for a repeat MRI of__’ s lumbosacral spine, as requested by Dr. Lori Wasserburger

Signed December 16, 2002.


Administrative Law Judge

  1. Subsection (h)(8) requires preauthorization of the repeat MRI in this case because the procedure will cost more than $350.00.
End of Document