DECISION AND ORDER
American Home Assurance Company (Carrier) appealed the decision of the Independent Review Organization (IRO) issued on September 12, 2002. The IRO ordered preauthorization for the reasonable and necessary costs of a lumbar discogram with CT scan for______ (Claimant). In this decision, the Administrative Law Judge (ALJ) finds that Carrier failed to meet its burden of showing that the requested treatment was not reasonable and necessary medical care and should not have been preauthorized by the IRO. Therefore, the ALJ concurs with the IRO decision, and Carrier is ordered to authorize and reimburse the reasonable and necessary costs associated with the requested treatment.
The hearing convened on November 26, 2002, before Steven M. Rivas, Administrative Law Judge (ALJ). Carrier was represented by Dan Kelley, attorney. John A. Sazy, M.D. (Provider), appeared and represented himself. The record closed the same day.
Claimant was an employee of_______, and sustained a compensable injury to her back on_______. The circumstances of Claimant’s injury were not addressed at the hearing. On May 25, 2001, Provider began treating Claimant for her injuries. Provider treated Claimant with epidural injections, anti-inflammatory medication, and analgesic narcotic medication, but found Claimant still complained of back pain. Provider then performed an MRI on Claimant, which revealed Claimant had degenerative disc disease at the L-5 transitional vertebrae. Provider recommended Claimant undergo a lumbar discogram with CT scan and sought preauthorization from Carrier, which was denied as not medically necessary.
Under the Tex. Lab. Code Ann. §408.021 (a), an employee who sustains a compensable injury is entitled to all health care that cures or relieves the effects naturally resulting from the compensable injury; promotes recovery, or enhances the ability of the employee to return to or retain employment.
Under Tex. Lab. Code Ann. §401.011(19) health care “includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.”
Under the Commission’s Spine Treatment Guideline found at 28 Tex. Admin. Code §134.1001(f), lumbar discography should usually be performed after six months from the date of injury and only after appropriate imaging studies such as an MRI or CT/myelogram have been performed with questionable, suggestive, or abnormal findings.
Evidence and Analysis.
Carrier primarily relied on a report prepared by Victor Roth, M.D., on April 15, 2002, which asserted Claimant was not a proper candidate for a lumbar discogram based on certain findings made by Alan Hurschman, M.D., and the results of Claimant’s MRI. Dr. Hurschman’s report dated October 9, 2001, concluded Claimant exhibited no symptoms on the straight leg raise, and no radicular pain. Claimant’s MRI also indicated no evidence of disc herniation.
Provider argued the findings of Dr. Roth and Dr. Hurschman do not necessarily exclude Claimant from the requested treatment. For instance, Provider argued, radicular pain in Claimant’s leg or Claimant’s performance on a straight leg raise test are not significant considerations in determining whether Claimant is a proper candidate for a lumbar discogram because Claimant’s main complaint is back pain, and not leg pain.
Carrier did not dispute that Claimant was unresponsive to previous treatment but argued Claimant should undergo a less-invasive procedure before undergoing a lumbar discogram. One such procedure Carrier suggested was an electromyogram (EMG). Provider pointed out an EMG is not a non-invasive procedure because it involves sticking a needle into a patient’s muscle and applying an electric shock to record the muscle activity.
Provider further argued the Commission’s Spine Treatment Guideline specifically allows Claimant to undergo a lumbar discogram in this case. Provider asserted the requested procedure would be performed more than six months after the date of injury and after an MRI indicated degenerative disc disease as stipulated under the Commission’s Spine Treatment Guideline found at 28 Tex. Admin. Code § 134.1001(f).
The IRO issued its report on September 12, 2002, and found the lumbar discogram was medically necessary. The IRO decision stated:
The patient continues to complain of pain and a discogram would determine if the pain is generated from a disc. If the pain is related to a torn annulus, this study would document that defect. If the discogram is negative, no surgical intervention is indicated and appropriate measures can be taken to return the patient to the workforce. With persistent pain that is not explained, a discogram would provide additional information to corroborate the pain site.
Other than pointing out Dr. Roth’s report, Carrier did not address the findings of the IRO decision and did not present sufficient evidence that persuaded this ALJ to conclude the IRO decision was incorrect.
After reviewing the evidentiary record, the ALJ finds that the Carrier, as the party appealing the IRO decision, has not met its burden of proof. Specifically, Carrier has failed to establish by a preponderance of the evidence that the requested treatment is not medically necessary to treat Claimant’s compensable injury. While Dr. Roth suggested Claimant was not a proper candidate for a lumbar discography, the evidence is clear that Claimant is a suitable candidate under the provisions of the Spine Treatment Guideline.
For the foregoing reasons, the ALJ concludes that the requested procedure is reasonable and necessary medical treatment for Claimant’s compensable injury, and should be authorized.
II. FINDINGS OF FACTS
- ____ (Claimant) sustained a compensable injury on _________As a result of the compensable injury, Claimant suffered pain in her back.
- On May 25, 2001, Claimant came under the care of John A. Sazy, M.D. (Provider), who treated Claimant with epidural injections, anti-inflammatory medication, and analgesic narcotic medication.
- Provider then performed an MRI of Claimant, which revealed Claimant had degenerative disc disease at the L-5 transitional vertebrae.
- Because Claimant was non-responsive to prior treatment, Provider recommended Claimant undergo a lumbar discography with CT scan.
- Provider sought preauthorization from American Home Assurance Company (Carrier) and was denied.
- Carrier denied preauthorization, maintaining that the requested treatment was not medically necessary. Carrier asserted Claimant was not a proper candidate for a lumbar discogram and should undergo an EMG instead of a lumbar discogram.
- Provider sought medical dispute resolution with an Independent Review Organization (IRO) which concurred with Provider and authorized Claimant undergo the requested treatment in its decision issued September 12, 2002.
- Carrier timely appealed the IRO decision to the State Office of Administrative Hearings (SOAH).
- Notice of the hearing in this case was mailed to the parties on October 17, 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.
- The hearing was held on November 26, 2002, before Steven M. Rivas, Administrative Law Judge (ALJ). Provider appeared and represented himself. Carrier was represented by Dan Kelley, attorney. The hearing was adjourned and the record closed the same day.
- It has been 19 months since Claimant sustained her compensable injury.
- Claimant has exhausted all other non-operative treatment.
- An MRI of Claimant revealed degenerative disc disease at the L5 transitional vertebra.
- Claimant is a suitable candidate to undergo lumbar discography with CT scan.
III. CONCLUSIONS OF LAW
- The Commission has jurisdiction over this matter pursuant to Tex. Lab. Code § 413.031.
- 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.
- 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.
- Carrier 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).
- 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.
- Under 28 Tex. Admin. Code § 134.1001(f), lumbar discography should usually be performed after six months from the date of injury and only after appropriate imaging studies such as an MRI or CT/myelogram has been performed with questionable, suggestive, or abnormal findings.
- Carrier did not prove that the lumbar discography is not medically necessary for treating Claimant’s compensable injury.
- Based on the above Findings of Fact and Conclusions of Law, Carrier’s appeal should be denied, and the request for preauthorization should be granted.
IT IS ORDERED THAT the appeal of American Home Assurance Company is denied. The ALJ concurs with the decision of the Independent Review Organization ordering preauthorization for lumbar discography with CT scan. Carrier is ordered to reimburse all reasonable and necessary covered expenses associated with such treatment.
Signed this 19th day of December, 2002.
STATE OFFICE OF ADMINISTRATIVE HEARINGS
STEVEN M. RIVAS
Administrative Law Judge