DECISION AND ORDER
John A. Sazy, M.D. (Petitioner) is appealing the decision of Envoy Medical Systems, LLC, an independent review organization (IRO) certified by the Texas Department of Insurance, in Texas Workers’ Compensation Commission (Commission) Medical Review Division tracking number M2-02-0922-01denying preauthorization for the requested discogram with CT scan. The IRO determined from the medical documentation submitted for review that the requested medical procedure was not medically necessary to treat the Claimant’s condition. The Administrative Law Judge (ALJ) finds the request for preauthorization should be granted because the requested treatment is medically necessary.
I.PROCEDURAL HISTORY, JURISDICTION, AND NOTICE
On November 12, 2002, ALJ Michael J. Borkland convened the hearing at the William P. Clements Building, 300 West 15th Street, Austin, Texas. Petitioner appeared pro se via telephone. Reliance National Indemnity Company (Respondent or Carrier) was represented by Steven Tipton, attorney. Notice and jurisdiction were not contested and will be addressed in the findings of fact and conclusions of law. Following the presentation of evidence, and the post-hearing submission of articles and comments, the hearing was closed on November 22, 2002.
The Claimant, who is a 46-year old male, suffered a lower back injury when he fell on____________. Treatment for the injury included epidural steroid injections, and an L4-L5 and L5-S1 discectomy with posterior lateral fusion. The Claimant began seeing Petitioner on February 12, 1999, for ongoing pain. The Petitioner seeks preauthorization for a discogram with CT scan to determine the source of the Claimant’s pain.
The documentary evidence presented consisted of the documentation reviewed by the IRO (Exh.1), several articles provided by both parties, and post-hearing comments filed by Dr. Sazy. The records reflect that an MRI of the lumbar spine was performed on June 25, 1999, at Petitioner’s request. Findings included post-surgical changes with a fusion mass extending from L4-S1 and a laminectomy defect at the L4-S1 level. Also noted was some narrowing of the left L5-S1 neural foramen and some edema of the proximal descending nerve root. (Exh. 1, p. 24) A lumbar myelogram with post myelographic CT scan was performed on May 17, 2000, at Petitioner’s request. The study found that the fusion of the L4-L5 and L5-S1 levels appeared solid. Spondylosis was found at several levels. Also found were disc bulges and severe facet disease (Exh. 1, p. 25 and 26)
The Claimant was seen by Dr. Patrick W. Donovan, M.D., on July 21, 2001, after completing a series of epidural steroid injections without significant improvement. The Claimant’s pain symptoms were unchanged from a previous examination, and the Claimant reported falling a number of times due to weakness in the left lower leg. Dr. Donovan stated that the Claimant has ongoing nerve root irritation and that Dr. Sazy has recommended redoing the lumbar fusion. Dr. Donovan stated that the Claimant’s ongoing symptoms are not the result of a new injury, but developed following the initial injury of January 29, 1992. (Exh. 1, p. 27 and 28)
The Claimant was again seen by Dr. Donovan on November 21, 2001. The Claimant’s pain level was essentially unchanged, and he had numbness, burning and tingling sensations in his left lower extremity. Dr. Donovan recommended a lumbar discogram, and that the Claimant follow Dr. Sazy’s recommendations. Dr. Donovan explained that his role was to only control the Claimant’s pain. (Exh. 1, p. 20 and 21)
Dr. Donovan again saw the Claimant on September 11, 2002. The Claimant’s back pain was essentially unchanged with ongoing stiffness, spasm and right lower extremity paresthesias. The Claimant reported that prescription medications relieved some of his symptoms, but increased drowsiness occurred. Dr. Donovan continued to recommend a lumbar discogram. (Exh. 1, p. 18 and 19)
The Carrier denied preauthorization of the requested lumbar discogram on four separate occasions. The reasons given were inadequate documentation to support services, a myelogram showed a solid multilevel fusion, and a discogram is indicated only after appropriate imaging studies have been performed. (Exh. 1, p. 10 - 17)
Testimony of Dr. Sazy
Dr. Sazy is the Claimant’s current treating physician. He went to medical school at Wayne State University, and later studied orthopedic surgery in New York. Dr. Sazy then moved to Galveston, Texas, to study burn treatment at the University of Texas Medical Branch. He resumed his orthopedic training at the Chicago Spine Fellowship, and became a specialist in reconstructive and revision spine surgery.
Dr. Sazy testified that it is necessary to determine if the Claimant’s ongoing pain is a function of the fusion that was performed or if it is from adjacent areas. He stated that the discogram is prudent and medically reasonable to determine whether discs are part of the pain and if a surgical solution is necessary.
On cross-examination, Dr. Sazy testified that discogenic back pain can be different from radiculopathy pain. Discogenic pain emanates from a disc and a discogram reproduces the patient’s symptoms. If the test is positive, it shows which levels are involved. Dr. Sazy stated discograms are not controversial and that it is important to do the test.
The parties provided a number of articles from medical journals discussing the merits of discography. Some of the articles supported the use of discograms as a diagnostic tool for back pain. Others did not. Dr. Sazy provided post-hearing comments on the articles provided by the Carrier.
The burden is on the Petitioner to show that necessity for the requested procedure has been adequately documented. Both Dr. Donovan and Dr. Sazy have examined the Claimant. Both believe that additional diagnostic testing is needed to determine if the Claimant needs surgical intervention. Dr. Sazy testified that the requested procedure is not controversial and it is prudent and medically necessary to determine if the Claimant’s pain is emanating from his discs or adjacent areas. The evidence supports preauthorization of the requested procedure.
IV. FINDINGS OF FACT
- On_____ the Claimant sustained an on-the-job injury to his lower back when he fell.
- At the time of the Claimant’s injury, Reliance National Indemnity Company (Respondent or Carrier) provided workers’ compensation insurance to the Claimant’s employer.
- The Claimant was treated with epidural steroid injections and a posterior lateral fusion at the L4-L5 and L5-S1 levels.
- The Claimant continued to experience low back pain following the multi-level fusion referred to in Finding of Fact No. 3.
- Patrick W. Donovan, M.D. and John A. Sazy, M.D. (Petitioner), Claimant’s current treating physicians, recommend a discogram with CT scan to determine the source of the Claimant’s ongoing pain.
- A discogram is a non-controversial diagnostic procedure that determines whether discs or the areas adjacent to the discs are the source of pain.
- A positive discogram will indicate that additional surgical intervention is necessary to treat the Claimant’s ongoing pain.
- Dr. Sazy will perform surgery to treat the Claimant’s condition if diagnostic testing indicates that surgery is necessary.
- The Carrier denied the Petitioner’s request for preauthorization of a discogram with CT scan.
- The Petitioner requested dispute resolution services from the Texas Workers’ Compensation Commission’s Medical Review Division.
- On September 6, 2002, Envoy Medical Systems, LLC, an independent review organization certified by the Texas Department of Insurance, issued its decision denying preauthorization because discography would not be helpful in determining the next logical step in trying to relieve the Claimant’s pain.
- Petitioner filed a request for hearing to contest the denial of preauthorization of the requested services.
- The Commission sent notice of the hearing to the parties on October 28, 2002. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
- The hearing on the merits convened on November 12, 2002, before Michael J. Borkland, Administrative Law Judge. Petitioner appeared pro se. Respondent appeared through Steven Tipton, attorney.
V.CONCLUSIONS OF LAW
- The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented, pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. §413.031.
- 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(k) and Tex. Gov’t Code Ann. ch. 2003.
- Petitioner timely filed notice of appeal, as specified in 28 Tex. Admin. Code (TAC) § 148.3.
- Proper and timely notice of the hearing was effected upon the parties according to Tex. Gov’t Code Ann. ch. 2001 and 28 TAC § 148.4(b).
- Petitioner had the burden of proving the case by a preponderance of the evidence, pursuant to 28 TAC § 148.21(h) and (i), and 1 TAC § 155.41.
- As provided by Tex. Lab. Code Ann. § 413.014 and 28 TAC § 134.600(h)(1), preauthorization is required for all non-emergency hospitalizations.
- Based on Findings of Fact Nos. 3 - 8, the requested medical procedure is medically necessary.
- Based on Findings of Fact Nos. 3 - 8, and Conclusions of Law Nos. 5 and 7, Claimant is entitled to preauthorization for the medically necessary treatment.
IT IS, THEREFORE, ORDERED that Respondent, Reliance National Indemnity Company, pay the reasonable and necessary cost of providing the Claimant the requested discogram with CT scan.
Signed this 18th day of December, 2002.
MICHAEL J. BORKLAND
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- A discogram is an x-ray photograph of an intervertebral disc made after injection of a radiopaque substance. Merriam Webster’s Medical Dictionary (1995), at page 181.↑
- Any of a variety of degenerative diseases of the spine. Merriam Webster’s Medical Dictionary (1995), at page 653.↑
- A sensation of pricking, tingling, or creeping of the skin having no objective cause and usually associated with injury or irritation of a sensory nerve or nerve root. Merriam Webster’s Medical Dictionary (1995), at page 501.↑
- The articles provided by the parties were interesting to read, but the ALJ could draw no conclusions from the competing articles other than there are differing opinions concerning discography.↑