This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On June 17, 1998, a contested case hearing (CCH) was held. The issues concerned whether the claimant, should have spinal surgery paid for by the appellant (carrier).
The hearing officer found that the great weight of contrary medical evidence was not against the presumptive weight to be accorded to two concurrences for the need for spinal surgery, and ordered the carrier to pay.
The carrier appeals, essentially arguing that the case of Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706 (Tex. 1997) (hereinafter referred to as Havner) applies. Carrier argues that medical opinions in favor of surgery were based upon information of questionable scientific validity (a discogram) and consequently such testing and opinions based thereon amounts to “no evidence.” The carrier also complains of error in the hearing officer not admitting on the basis of relevance its exhibit containing numerous articles about discograms. The claimant responds that the hearing officer’s ruling on evidence was correct (pointing to an alternative argument that they were not timely exchanged), and that his order in support of surgery was correct.
DECISION
Affirmed.
The claimant had a low back injury which did not respond to conservative treatment. Objective testing (not only the discograms in controversy in this appeal) indicated a disc protrusion at L1-2. Claimant testified as to continued pain and discomfort. When claimant was examined by the designated doctor on January 26, 1998, he documented her unwillingness at that time to consider a surgical option. Her doctor, Dr. S, a spinal surgeon, recommended surgery. His letter of June 5, 1998, cites not only a positive discogram but notes the failure of conservative treatment for over a year, as well as nerve-related urinary problems, as other reasons for his recommendation. One of the second opinion doctors, Dr. R, concurred. Dr. R’s May 18, 1998, report cites the objective testing claimant had, but identifies as the basis for his agreement the failure of claimant to improve from an annular tear of the L1-2 vertebrae with over a year or more of conservative treatment. The other second opinion doctor, Dr. M, states that he did not believe she had an operative lesion and flatly did not consider a discogram to be an adequate test. None of the arguments made by the carrier in its appeal as to whether the discogram was correctly done were raised by Dr. M. It is apparent that he rejects this type of testing, as significant. He does not identify any literature, even generally, let alone that tendered by the carrier in its rejected exhibit, as the basis for his belief. Dr. M found his examination of the claimant to be essentially normal, indicative of only mild pain.
We will affirm the hearing officer’s exclusion of the articles in question on the basis of relevance. While he overruled an alternative objection to failure to timely exchange, we note that articles of this nature should generally be exchanged within the time frames provided for exchange of all evidence. The hearing officer did not abuse his discretion with respect to this exhibit. If there were any error, however, it would be harmless because the articles do not purport to do more than comment and analyze the controversy over discograms, and neither of the doctors recommending surgery relied exclusively on the discograms, as the carrier argues. The hearing officer properly kept the focus of the dispute on the issue of whether this claimant should have spinal surgery, and would not be drawn off on the side issue of whether discograms should be credited as a diagnostic device.
We would further add that the efforts of either party to bolster a doctor’s opinions with medical treatises not expressly relied on or cited by its doctors, inviting the trier of fact to speculate that the doctor’s reasoning was the same as that of the article’s author, is itself subject to many of the concerns raised by the Havner case. Simply because xeroxed articles purport to be from scholarly journals does not confer upon them a higher level of reliability in an individual’s case than the opinions of doctors who actually examined the claimant, considered her medical history, and opined whether surgery is, or is not, needed. Although carrier argues that Havner is a sufficiency of the evidence case and must be applied by the Texas Workers’ Compensation Commission in spinal surgery cases, it is crystal clear that the Havner case is first and foremost a causation case involving exposure to a contended toxic substance and subsequent injury. The opinion has to do with, and comments extensively on, the use of scientific testimony to prove medical cause and effect. The workers’ compensation case cited with that decision, Schaefer v. Texas Employers’ Insurance Association , 612 S.W.2d 199 (Tex. 1980), is itself an occupational disease/causation case. The course of medical treatment for an injury was not before the Supreme Court in Havner, and we decline to conclude that the court intended its opinion concerning the testimony of hired experts to be extended wholesale into the venue of evaluating the treatment decisions of physicians. As Texas Workers’ Compensation Commission Appeal No. 972493, decided January 16, 1998 (Unpublished), correctly noted, the forum of CCH proceedings is expressly not subject to the rules of evidence; health care providers may “appear” at CCHs through their reports, rather than be called for direct and cross-examination, and the objective is resolution of disputes through something less than a full blown court trial of the nature under review by the Supreme Court in Havner. Finally, as we pointed out above, carrier’s analysis fails because its underlying assumption, that Dr. R relied solely on the discogram for his concurrence, is belied by a cursory reading of Dr. R’s report.
The mechanism for second opinions on spinal surgery applicable to claimant’s case is set forth in detail in 28 TEX. ADMIN. CODE § 133.206 (Rule 133.206) [version in effect prior to amendment effective July 1, 1998]. The hearing officer followed Rule 133.206(k)(4), and gave presumptive weight to the two concurring opinions. We do not agree that he simply “rubber stamped” these opinions, as the great weight of medical opinion contrary to this recommendation was not found by him in Dr. M’s opinion. Discogram aside, the hearing officer could compare the observations of claimant made by all doctors who examined her in the spinal surgery process and he could choose to disbelieve that she was entirely normal. His evaluation of the evidence is sufficiently supported by the record, and is not in any case so against the great weight and preponderance of the evidence so as to command reversal. We therefore affirm the decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
CONCURRING OPINION:
I concur in the result but note that the medical articles offered could be relevant and admitted as medical evidence under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 133.206(k)(4). The refusal to admit the articles did not affect the outcome of the case.
Joe Sebesta – Appeals Judge