DECISION AND ORDER

C. C. (Claimant) challenged the decision of K-Mart Corporation (Carrier), denying preauthorization for a lumbar discogram with CT scan. In this decision, the Administrative Law Judge (ALJ) finds that Claimant did not meet its burden of showing that the requested procedure is reasonable and necessary medical care and should be preauthorized. Therefore, the ALJ does not order Carrier to authorize the requested lumbar discogram.

The hearing convened and closed on January 15, 2004, before ALJ Steven M. Rivas. Claimant appeared and was assisted by Luz Loza, Ombudsman. Carrier appeared and was represented by William E. Weldon, attorney.

I. DISCUSSION

Background Facts

Claimant sustained a compensable back injury on November 7, 2002. As part of her treatment, Claimant underwent three months of physical therapy, epidural steroid injections (ESI), and an MRI examination on December 16, 2002.

Claimant’s treating doctor recommended Claimant undergo a lumbar discogram, and Carrier denied preauthorization as not medically necessary. The dispute was referred to an Independent Review Organization (IRO), which agreed with Carrier. Provider appealed the IRO decision to the State Office of Administrative Hearings.

Applicable Law

Pursuant to the Texas Workers= Compensation Act (the Act), Tex. Lab. Code Ann. ‘ 408.021et seq., 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.

Certain categories of health care identified by the Commission require preauthorization, which is dependant upon a prospective showing of medical necessity under ‘ 413.014 of the Act and 28 Tex. Admin. Code (TAC) ‘ 134.600. In this instance under 28 TAC ‘ 134.600(h)(7), preauthorization is required for the discogram requested by Claimant.

Evidence and Analysis

The requested lumbar discogram should not be authorized at this time. At the hearing, Claimant presented her medical records and testified that she continues to suffer from back pain and radicular pain in her legs. Following her injury, Claimant was treated by Bruce Prager, M.D., who diagnosed Claimant with a lumbosacral strain and prescribed a physical therapy program, which Claimant completed in three months. During her treatment with Dr. Prager, Claimant complained of persistent lower back pain and radicular pain. Upon discharge from the physical therapy program on February 4, 2003, Vicki L. Nicklas, PT, indicated that Claimant exhibited a Agood prognosis from skilled rehabilitative therapy in conjunction with a home exercise program.

On December 16, 2002, Climant underwent an MRI exam, which revealed mild bulging discs at the L4/L5 and L5/S1 levels, but Aotherwise negative. Following the MRI, Dr. Prager had Claimant undergo two sets of ESI, which temporarily relieved Claimant’s back pain, according to Claimant. Dr. Prager continued to treat Claimant with medication before referring her to Dr. Myles.

On May 1, 2003, before Claimant started her treatment with Dr. Myles, she was examined by John Y. Nguyen, M.D., the Commission’s designated doctor. Dr. Nguyen noted that Claimant was not reached maximum medical improvement and recommended she have an orthopedic consultation to see if she was a candidate for surgical intervention.

On Claimant’s first visit with Dr. Myles, he noted Claimant still complained of back pain and radicular pain and recommended Claimant undergo a lumbar discogram. Dr. Myles found the MRI results revealed internal disc derangement at the L4/L5 and L5/S1 levels.

Carrier presented reports from Melissa Tonn, M.D., and Nicholas Tsourmas, M.D. Both doctors reviewed Claimant’s medical records and concluded that based on the records, Claimant was not a good candidate for surgery or a discogram. Both doctors acknowledged Claimant’s mild disc bulge but concluded the objective findings do not support that a discogram is medically necessary at this time because Claimants medical records do not indicate any pathology that would require surgical intervention. Additionally, Carrier pointed out the IRO decision upheld denial of preauthorization because the purpose of a discogram is to confirm any abnormalities revealed on an MRI examination, and in this case, no abnormalities exist.

The ALJ finds the Carrier’s arguments convincing and the denial of preauthorization should be upheld in this matter.

II. FINDINGS OF FACT

1. C. C. (Claimant) sustained a compensable back injury on November 7, 2002.
2. Claimant underwent various treatment modalities following her injury including physical therapy, epidural steroid injections, and diagnostic tests.
3. Claimant was referred to Robert T. Myles, M.D., who recommended Claimant undergo a lumbar discogram.
4. Claimant sought preauthorization for a discogram from K-Mart Corporation (Carrier), which was denied.
5. Claimant sought medical dispute resolution with the Texas Workers= Compensation Commission’s Medical Review Division, which referred this matter to an Independent Review Organization (IRO). The IRO report concurred with Carrier and denied preauthorization.
6. Claimant timely requested a hearing before the State Office of Administrative Hearings (SOAH).
7. Notice of the hearing in this case was mailed to the parties on November 12, 2003. 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.
8. The hearing convened and closed on January 15, 2004, before Steven M. Rivas, Administrative Law Judge (ALJ). Claimant appeared and was assisted by Luz Loza, Ombudsman. Carrier appeared and was represented by William E. Weldon, attorney. The hearing was adjourned and the record closed the same day.
9. Claimant completed her physical therapy program with a good prognosis.
10. Claimant had an MRI exam performed on December 16, 2002. The results of the MRI revealed no significant findings other than a bulging disc at the L4/L5 and L5/S1 levels.
11. Claimant is not a candidate for surgical intervention or a discogram at this time.

III. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. ‘ 401.001et seq. (the Act).
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to ‘ 413.031(k) of the Act and Tex. 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 Claimant, as Petitioner, had the burden of proof on appeal by a preponderance of the evidence under ‘ 413.031 of the Act, and 28 Tex. Admin. Code ‘148.21(h).
5. The results of the MRI exam do not necessitate a lumbar discogram.
6. The requested lumbar discogram is not medically necessary for treating Claimant’s compensable injury.

ORDER

IT IS, THEREFORE, ORDERED that the requested lumbar discogram not be preauthorized.

Signed on February 18, 2004.

STEVEN M. RIVAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS