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At a Glance:
March 27, 2003


March 27, 2003


_________ (“Petitioner”) appeals an Independent Review Organization ("IRO") decision in a preauthorization dispute. The IRO found that a lumbar discogram was not medically necessary to treat the injured worker. This decision agrees with Carrier, and finds the discogram is not medically necessary or reasonable.

I. Notice, Jurisdiction, and Procedural History

Notice and jurisdiction were not disputed and are discussed in the findings of fact and conclusions of law. The hearing was convened on February 28, 2003, at State Office of Administrative Hearings facilities, 300 West Fifteenth Street, Austin, Texas, by Administrative Law Judge (“ALJ”) John H. Beeler. The Texas Workers’ Compensation Commission's (Commission or TWCC) staff did not participate in the proceedings. Attorney Dan Kelley represented the Carrier. Petitioner appeared by telephone and was assisted by TWCC Ombudsman Luz Loya. The hearing concluded and the record closed on the same day.

II. Discussion

A. Background

Petitioner sustained a compensable injury on__________, and is still experiencing severe back pain. Petitioner had an MRI on February 2, 2002, which showed mid line disk rupture with extension to the right side at L5-S1. A CT myelographic evaluation on April 1, 2002, failed to show any signs of surgical pathology.

B. IRO Decision

The IRO determined the discogram was not medically necessary because the results of the discography would not change the obvious course of treatment. An L5-S1 diskectomy is the logical course to pursue if the patient understands that there is no guarantee that it will end the pain.

C. Petitioner’s Evidence

Dr. Luis Duarte.

Dr. Duarte, a neurosurgeon, testified that he is Petitioner’s treating doctor. Petitioner has back pain and pain that radiates down his leg, primarily on the right-hand side. He has a disc herniation at the L5-S1 level. Petitioner has had all forms of conservative treatment including physical therapy and epidural steroid injections. Dr. Duarte recommends a discogram because Petitioner still has severe back pain and leg pain that precludes him from returning to work. The purpose of the discogram is to identify the generator of his low back and lower extremity pain. If the pain is found to be caused by the herniated disc, Petitioner would have several options concerning treatment. He could choose to live with the pain, undergo additional conservative treatment, or he could opt for surgical intervention. If the discogram turns out to be negative, Dr. Duarte would explain to Petitioner that, though he has a herniated disc and severe back pain, the pain is not caused by the herniated disc, and that he would just have to live with it.

Dr. Duarte disagrees with the IRO decision. The herniated disc could be the cause of Petitioner’s pain and the discogram would show if it, in fact, is the cause. All office notes and radiologist reports were forwarded to the IRO. The risk involved in the procedure is very low and Petitioner deserves all diagnostic tests prior to surgery.

During cross examination Dr. Duarte testified that other diagnostic tests have been done and the L5-S1 is the only disc involved.


Petitioner testified that he is in extreme pain and would be willing to undergo back surgery if it would relieve the pain.

D. Carrier's Evidence.

Carrier offered the business record affidavit and the medical records the submitted to IRO. The records indicate that all testing to date show the herniated L5-S1 is Petitioner’s only abnormality.

III. Legal Standards

A. Entitlement to Medical Benefits.

An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. §408.021. §§Health care§§ includes "all reasonable and necessary medical . . . Services.§§ Tex. Lab. Code Ann. §401.011(19).

B. Preauthorization.

Certain categories of health care identified by the Commission require preauthorization, which is dependent upon a prospective showing of medical necessity. Tex. Lab. Code Ann. §413.014; 28 Tex. Admin. Code (TAC) §134.600. A discogram requires preauthorization pursuant to 28 TAC §134.600(h)(6).

IV. Analysis

Dr. Duarte’s testimony reflected genuine concern for his patient's well-being. However, in this case, the Carrier's evidence was more persuasive and proved that the discogram is not medically necessary. The medical records, as well as Dr. Duarte’s testimony, show that the only cause of Petitioner’s pain is the herniated L5-S1 disc. The parties agree that the discogram would only serve to determine the cause of the pain.

V. Findings of Fact

  1. The worker ("Petitioner") sustained a work-related injury on_________.
  2. At the time of the Petitioner's injury, his employer had workers' compensation coverage through Argonaut Southwest Insurance Company ("Carrier").
  3. Petitioner had an MRI on February 2, 2002, which showed mid line disk rupture with extension to the right side at L5-S1.
  4. A CT myelographic evaluation on April 1, 2002, failed to show any signs of surgical pathology.
  5. Petitioner has undergone conservative treatment but is still in severe pain.
  6. A discogram would not provide additional information concerning the course of Petitioner’s treatment.
  7. The Independent Review Organization decision to not authorize a discogram was issued September 24, 2002, and Petitioner timely appealed.
  8. Notice of the hearing was sent to all parties on November 19, 2002.
  9. The Carrier, Petitioner, and Petitioner's physician participated in the hearing on February 28, 2003.

VI. Conclusions of Law

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Labor Code Ann. §413.031 (the Act).
  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 §413.031(k) of the Act andTex. Gov't Code Ann. ch. 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
  4. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001.
  5. Petitioner had the burden of proof in this proceeding pursuant to Tex. Admin. Code §133.308(v).
  6. Based upon the foregoing findings of fact, a discogram is not medically necessary health care as contemplated in §408.021 of the Act.
  7. The preauthorization request should be denied.


IT IS THEREFORE, ORDERED that the discogram preauthorization request is denied.

Signed this 27th day of March, 2003.


Administrative Law Judge

End of Document