DECISION AND ORDER

___ (Claimant) disputes the decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission, TWCC) affirming the denial by Indiana Lumbermens Mutual Insurance Company (Carrier) of pre-authorization for a lumbar myelogram and CT scan. The Administrative Law Judge (ALJ) finds that pre-authorization should be ordered because the requested treatment is medically necessary to promote Claimant’s recovery from his compensable injury.

I. JURISDICTION, NOTICE AND VENUE

The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t Code Ann. Chapter 2003. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann., Chapter 2001 and SOAH’s rules, 1 Tex. Admin. Code (TAC) Chapter 155.

Notice of the hearing was sent to the parties on December 30, 2003. Notice and jurisdiction are not contested and are addressed in the Findings of Fact and Conclusions of Law set out below.

ALJ Sharon Cloninger convened the hearingMarch 18, 2004, in the William P. Clements Building, Fourth Floor, 300 West 15^th Street, Austin, Texas.Petitioner appeared via telephone and was assisted by Luz Loza, Commission ombudsman.Carrier was represented by CharlesFinch, attorney. The hearing concluded and the record closed that same day.

II. BACKGROUND

On ___, Claimant incurred a compensable injury to his low back while lifting an approximately 80-pound bundle of shingles onto a roof. As a result of the injury, Claimant had an L4-5 and L5-S1 laminectomy in October 1999, and a fusion in September 2000.^[1] Claimant’s condition improved, but then worsened, following each surgery.

Claimant’s most recent myelogram, which was normal, was done on September 19, 2001. Claimant’s most recent CT scan, done on that same date, showed L3, above the fusion, to be herniated. On February 24, 2003, an EMG was done, with normal testing results. No other diagnostic tests have been done on Claimant’s lumbar spine since the September 2000 fusion.

Claimant has not worked since the day after his injury occurred. A September 3, 2003 functional capacity evaluation (FCE) determined that Claimant’s current abilities are significantly less than his previous job required, and that he is capable of working no more than four hours per day.

To cope with the chronic pain resulting from his injury, Claimant has used a thoracic epidural spinal cord stimulator since September 2002, and takes pain and anti-inflammatory medication. He exercises to strengthen his low back.

Claimant’s surgeries were performed by Robert LeGrand, M.D., a neurologist, who on July 30, 2003, requested pre-authorization for the lumbar myelogram and CT scan at issue in this matter.Carrier denied the request on August 4, 2003, and again on September 9, 2003,as not medically necessary because Claimant had a normal myelogram in September 2001 and has no radicular complaints. Claimant requested an appeal of Carrier’s denial before the Commission’s Medical Review Division, pursuant to 28 TAC § 134.600(g).The Commission referred the appeal request to an independent review organization (IRO), as permitted under 28 TAC § 133.308. On November 10, 2003, the IRO recommended non-authorization on the basis that there was no clinical evidence to recommend the requested services.On November 24, 2003, Claimant requested a hearing before SOAH.

III. DISCUSSION

Applicable Law

The only issue in this case is whether, by a preponderance of the evidence, the requested treatment is shown to be medically necessary. Medical necessity is defined at Tex. Labor Code Ann. § 408.021(a), which states:

(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. The employee is specifically entitled to health care that:

1. cures or relieves the effects naturally resulting from the compensable injury;
2. promotes recovery; or
3. enhances the ability of the employee to return to or retain employment.

Under 28 TAC § 148.21(h), the appealing party has the burden of proof in hearings, such as this one, conducted pursuant to Tex. Labor Code Ann. § 413.031. Thus, Claimant, as the petitioner, must prove the requested treatment is reasonably required within the meaning of Tex. Labor Code Ann. § 408.021(a).

Evidence

Claimant testified and offered two documents, which were admitted. Carrier offered two documents, which were admitted, and called no witnesses.

Claimant’s testimony

Claimant testified that his condition has progressively worsened over the past six months. Of most concern to him is that his legs have begun giving way, causing him to fall. He said he fell twice during the week prior to the hearing. He is concerned that his legs might “stop working” while he is driving.

He said that about six months after the September 2000 fusion, he developed pain in his right leg, and that about a year ago, the pain moved to his left leg as well. He said the spinal cord stimulator is not alleviating his pain very much, and he is taking more pain medication. He said his daily activities are limited to watching television, resting, lying down, and reading. He said he cannot drive or sit for long without his right leg “hurting really bad.”

Documentary evidence

a. Letters from Dr. LeGrand

In a March 8, 2004 report to Don R. Bennett, D.C., who is Claimant’s treating doctor, Dr. LeGrand says Claimant is “getting worse.” He states:

He has increasingly severe low back pain and bilateral hip and leg pain with loss of lumbar lordosis^[2] and he walks with a slightly flexed posture at the low back. Straight leg raising is positive bilaterally. . . .We are still trying to get approval for a lumbar myelogram and CT scan because of increasing symptoms. Then, we will know what to do regarding further management.

Dr. LeGrand also addresses Claimant’s worsening condition in earlier reports to Dr. Bennett. In a December 13, 2001 report, Dr. LeGrand said Claimant did not seem to have true radiculopathy at that time, but that follow-up studies would need to be done at some point to check out the L3-4 level.

In Dr. LeGrand’s February 7, 2003 report, he notes that when Claimant awoke from a nap several weeks before, he had the feeling his left leg would not work, and that the leg was still somewhat numb.

Dr. LeGrand’s July 24, 2003 report states AClaimant is having increasing back pain and aching pain in the hips and legs, primarily on the left side. He had a lumbar myelogram and CT scan a year-and-a-half ago, which was normal. . . .He is having enough trouble that I think that we should proceed with a current lumbar myelogram and CT scan to be sure nothing has happened. . . . . I could find no neurological changes. He does have some diminished mobility of the low back.”

Dr. LeGrand states in his August 26, 2003 report that he feels a lumbar myelogram and CT scan are necessary because of Claimant’s continued complaints. He says, A I certainly would not like to miss adjacent segment pathology. . . .”

By the November 20, 2003 report, Dr. LeGrand makes reference to Claimant’s “worsening condition and neurologic symptoms,” describing increasing low back pain with bilateral radicular leg pain into the feet, with a feeling of numbness. . . .”

b. Letter from Dr. Bennett

In a January 14, 2004 letter, Dr. Bennett supports pre-authorization of the requested lumbar myelogram and CT scan. He states that continued observation of Claimant to that date demonstrates a degenerative polyradiculopathy at L5/S1. He said that “[p]rolonged delay of diagnostic testing to determine current treatment is negligent and may result in further neurological deficit of the patient.”

c. Claimant’s dispute resolution request

In his September 2003 dispute resolution request, Claimant stated he is having more pain in both legs and problems walking. He said his lower back hurts more, and his legs go numb when he sits or stands for a short period of time.

IV. ANALYSIS

Claimant has met his burden of establishing that the requested treatment is medically necessary and that it should be pre-authorized. The evidence shows that Claimant’s condition has worsened since his last lumbar myelogram and CT scan were performed in September 2001. Since then, his legs have begun to collapse under him, and he is concerned that his legs could “quit working” while he is driving. Since September 2001, his pain has worsened, and has spread to his left leg. Dr. LeGrand states the requested tests could identify adjacent segment pathology, and Dr. Bennett states Claimant could suffer additional neurological deficit while awaiting the tests. The requested treatment would promote Claimant’s recovery from his compensable injury, because it could possibly identify what is causing his condition to worsen, which could lead to treatment that results in long-term or permanent improvement, and promote his recovery. Thus, Claimant is entitled to pre-authorization of thelumbar myelogram and CT scan pursuant to Tex. Labor Code Ann. § 408.021(a).

V. FINDINGS OF FACT

1. ___ (Claimant) suffered a compensable injury to his back on ___, while lifting roof shingles, causing him to suffer low back pain and right leg radiating pain.
2. Indiana Lumbermens Mutual Insurance Company (Carrier) was the insurance provider for Claimant’s employer at the time of his injury.
3. Don R. Bennett, D.C., is Claimant’s treating doctor, and Robert H. LeGrand, Jr., is his neurologist.
4. Claimant was diagnosed withsevere lumbrosacral strain with L4-5 and L5/S1 disk disease and possible radiculopathies.
5. A May 24, 1999 lumbar CT scan showed central disk protrusions at L4-5 and L5/S1. On that same date, X-rays showed some mild degenerative changes, and what appears to be a previous right L5/S1 laminectomy done in 1985 for right leg pain.
6. A June 28, 1999 MRI showed all other discs in the lumbar spine appeared to be normal in signal without evidence of herniation.
7. In October 1999 Claimant underwent right L4-5 and L5-S1 laminectomies with excision of recurrent herniated disc at L4-5 and L5-S1.
8. Claimant had previous surgery in 1985 with right L4-5 and L5-S1 laminectomies.
9. Claimant’s condition initially improved following the 1999 surgery, but by August 2000 he was having increasingly severe mechanical low back pain, aching right leg, and walked with a flexed posture at the low back.
10. In September 2000, because of Claimant’s persistent pain, Dr. LeGrand performed a two-level fusion-L-4 to the sacrum-utilizing interbody cages, pedicle screws, and a posterolateral fusion.
11. The CT myelogram that was performed pre-operatively for the September 2000 surgery showed only a very small disc herniation at L4.
12. Claimant improved for a time after the September 2000 surgery, but then developed chronic low back pain.
13. Following the September 2000 surgery, Claimant continued to receive chiropractic treatments from Dr. Bennett.
14. On September 19, 2001, Claimant had a repeat myelogram with CT scan that was normal.
15. A spinal cord stimulator was placed on September 6, 2002, for Claimant’s chronic pain.
16. Around March 2003, Claimant began experiencing left leg pain in addition to the right leg pain that began about six months after his September 2000 fusion.
17. Claimant’s condition has worsened in the past year, with his legs collapsing under him, pain extending to his left leg, and an increase in pain overall.
18. A lumbar myelogram and CT scan would identify any adjacent segment pathology that could be causing Claimant’s worsening condition, and could lead Dr. LeGrand and Dr. Bennett to the best course of treatment for him.
19. On July 30, 2003,Dr. LeGrand requested pre-authorization from Carrier for Claimant to undergo a lumbar myelogram and CT scan.
20. Carrier denied Claimant’s request for pre-authorization on August 4, 2003, and again on September 9, 2003, on the basis thatthe treatment is not medically necessary because Claimant had a normal myelogram in September 2001 and has no radicular complaints.
21. On September 23, 2003, following Carrier’s denial, Claimant filed a timely request with the Texas Workers’ Compensation Commission (the Commission, TWCC) for medical dispute resolution.
22. Claimant’s request was assigned to an independent review organization (IRO) by the Commission’s Medical Review Division (MRD).
23. The IRO issued a decision November 10, 2003, affirming Carrier’s denial of Dr. LeGrand’s request for pre-authorization.
24. On November 24, 2003, Claimant filed a timely request for hearing to contest the IRO decision.
25. Notice of the hearing was sent to the parties on December 30, 2003.
26. 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.
27. Administrative Law Judge Sharon Cloninger convened the hearingMarch 18, 2004, in the William Clements Building, 300 West 15^th Street, Fourth Floor, Austin, Texas.Petitioner appeared via telephone and was assisted by Luz Loza, ombudsman. Carrier was represented by Charles Finch, attorney. The hearing concluded and the record closed that same day.

VI. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction over this matter pursuant to Tex. Lab. Code Ann. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t Code Ann. Chapter 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t CodeAnn., Chapter 2001 and SOAH’s rules, 1 Tex. Admin. Code (TAC) Chapter 155.
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann.§ 2001.052.
5. Claimant met his burden of proving the requested treatment is medically necessary and reasonably required within the meaning of Tex. Lab. Code Ann. § 408.021(a).
6. Based on the foregoing Findings of Fact and Conclusions of Law, the requested treatment should be pre-authorized.

ORDER

IT IS, THEREFORE, ORDERED that Indiana Lumbermens Mutual Insurance Company shall pay the reasonable costs of the lumbar myelogram and CT scan requested by ___ for treatment of his compensable injury.

Signed April 7, 2004.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. In 1985, as the result of a prior injury, Claimant had an L4 laminectomy to relieve pain in his right leg. He was not able to return to the workplace until three years after the 1985 surgery.↑
2. Lordosis is exaggerated forward curvature of the lumbar and cervical regions of the spinal column. Merriam Webster’s Medical Dictionary, (1995), p. 381.↑