DECISION AND ORDER

John A. Sazy, M.D. (Provider), challenged the decision of United Pacific Insurance Company, an Impaired Company (Carrier), denying preauthorization for a lumbar discogram with CT Scan for ___ (Claimant). In this decision, the Administrative Law Judge (ALJ) finds that Provider 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 December 3, 2003, before ALJ Steven M. Rivas. Provider appeared and represented himself. Carrier appeared and was represented by Steve Tipton, attorney.

I. DISCUSSION

Background Facts

Claimant sustained a compensable back injury on ___, while lifting a heavy piece of metal. As part of his treatment, Claimant underwent an MRI examination on May 28, 1999, which revealed Claimant had a herniated disc at the L5-S1 level. On April 26, 2000, Claimant underwent a lumbar discogram with CT scan. Additionally, Claimant underwent two myelogram examinations, two additional MRIs, and an EMG exam before undergoing fusion surgery onSeptember 13, 2000.

Provider recommended Claimant undergo another 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 Provider.

Evidence and Arguments

Provider first testified Claimant’s prior fusion surgery failed because the surgeon who performed it used a procedure that has since been shown to have an increased failure rate. Therefore, according to Provider, Claimant must undergo another fusion surgery. However, Provider testified, that before Claimant undergoes another fusion operation he should have another discogram because it will help determine the extent of Claimant’s surgical needs. Also, Provider asserted, Claimant continues to complain of back pain in the L4-L5 region and a discogram at the L3-L4 and L4-L5 levels would assist in establishing the cause of the pain complaints. Provider admitted the prior MRI results contained no significant findings, but he argued that sometimes patients who exhibit “relatively normal findings” may also have annular tears or other abnormalities that do not show up on the test results. On cross-examination, Provider reiterated no significant findings were noted on the MRI, Myelogram, or X-ray examinations that were administered to Claimant.

Conversely, Carrier argued an additional discogram is not medically necessary in this case because it would not benefit Claimant in any way or provide any additional insight into Claimant’s complaints of back pain. In support of its position, Carrier called Thomas Padgett, M.D., who testified he reviewed Claimant’s medical records and concluded the requested discogram was not medically necessary for several reasons. The first reason Dr. Padgett cited was that Claimant’s prior fusion operation did not fail. Dr. Padgett testified he agreed with the IRO reviewer’s conclusion that Claimant had undergone a “solid” fusion operation. Therefore, no further treatment leading up to another fusion is necessary at this point. Additionally, Dr. Padgett testified the extensive diagnostic tests performed on Claimant did not reveal any abnormality in the L4-L5 region of Claimant’s spineBwhere Provider requests to perform the discogram. Finally, Dr. Padgett testified the discogram is an exam best suited to correlate findings of other diagnostic tests, and in this case, because there is no pathology or abnormality noted in any of the other diagnostic tests, the requested discogram is not medically necessary.

Analysis and Conclusion

The requested discogram is not warranted because the multiple diagnostic tests administered to Claimant did not reveal any abnormalities that would have necessitated another fusion surgery. Furthermore, the requested procedure would not promote recovery of Claimant’s compensable injury. Therefore, the discogram is not medically necessary and should not be preauthorized.

II. FINDINGS OF FACT

1. ___ (Claimant) sustained a compensable back injury on ___.
2. Claimant came under the care of John A. Sazy, M.D. (Provider) for treatment who recommended Claimant undergo a lumbar discogram.
3. Provider sought preauthorization for a discogram from United Pacific Insurance Company (Carrier) which was denied.
4. Provider 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.
5. Provider timely requested a hearing before the State Office of Administrative Hearings (SOAH).
6. Notice of the hearing in this case was mailed to the parties on November 6, 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.
7. The hearing convened and closed on December 3, 2003, before Steven M. Rivas, Administrative Law Judge (ALJ). Provider appeared and represented himself. Carrier appeared and was represented by Steve Tipton, attorney. The hearing was adjourned and the record closed the same day.
8. Claimant has undergone one prior spinal fusion surgery procedure.
9. Claimant’s prior diagnostic exams including a prior lumbar discogram, two myelogram examinations, three MRI exams, and an EMG exam have not revealed any abnormality in the area where Provider wants to perform the requested discogram.

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 Provider, 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 requested lumbar discogram will not promote Claimant’s recovery.
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 January 7, 2004.

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