DECISION AND ORDER

Mark J. Kubala, M.D. (Petitioner), appealed the findings and decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in MDR Docket No. M4-01-1154-01 which found no reimbursement due from the Texas Association of School Boards Risk Management Fund (Carrier) to Petitioner for spinal surgery performed on ___. (Claimant). The MRD decision, issued May 9, 2001, denied reimbursement on the basis that Carrier had been denied its right to have a second opinion rendered prior to the surgery. This decision finds Petitioner is not entitled to reimbursement.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter was held March 12, 2002, at the State Office of Administrative Hearings, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Suzanne Marshall presiding. After receipt of evidence and argument, the record closed that same day. Petitioner appeared pro se. Respondent Carrier was represented by attorney Jane Stone. The Commission did not participate in the hearing.

II. DISCUSSION

A. Background Facts

Claimant sustained an injury compensable under the Texas Workers’ Compensation Act (Act) in 2000. At the time of Claimant’s compensable injury, Carrier was her employer’s workers’ compensation insurer.

On October 19, 2000, Petitioner first saw Claimant for back pain. (Exh. 1, p. 52). Claimant was referred to Petitioner by her physician, Dr. Heather Peniuk. Petitioner was unaware that Claimant’s treatment was covered by worker’s compensation insurance. It was his understanding that she was covered only by private insurance at that time. Dr. Peniuk forwarded and Claimant provided only private insurance information to Petitioner. Claimant never mentioned to Petitioner that she had filed a workers’ compensation claim for this injury.

On October 26, 2000, Petitioner performed spinal surgery on Claimant. Because Petitioner was unaware Claimant had a workers’ compensation claim related to the surgery, Carrier was not informed of Claimant’s surgery prior to the operation and therefore did not have an opportunity to request a second opinion, as is required by TEX. LAB. CODE ANN. § 408.026^[1] and the Commission’s rule at 28 TEX. ADMIN. CODE §133.206(b).^[2] Petitioner did obtain preauthorization for the surgery from the private insurer. (Exh. 1, p. 10).

B. Parties’ Positions

Carrier contested reimbursement based on Petitioner’s failure to follow the required protocol for notification and second opinions. Petitioner argued that he should be reimbursed because, prior to the surgery, he did not know of Carrier’s involvement in the matter; being unaware Claimant was a workers’ compensation patient. Petitioner also argued that the surgery was medically necessary, as shown by the private insurer’s preauthorization, so that a second opinion would have been redundant. Carrier’s expert witness, orthopedic surgeon Dr. Albrecht, felt a second opinion might have been required before surgery as Claimant’s medical records indicated she was a candidate for a course of non-operative treatment. Carrier also argued that the issue in this case was not medical necessity, but its right to be notified of the surgery and to seek a second opinion.

C. Analysis

The evidence was undisputed that Petitioner did not follow Texas Labor Code or the Commission’s rules regarding notifying a Carrier of proposed spinal surgery. While Petitioner had no reason to notify Carrier of the surgery until he learned of Claimant’s workers’ compensation coverage, Carrier should not be held liable for a expenditure made without its approval due to Petitioner’s ignorance of the scope of Claimant’s insurance coverage.

None of the exceptions to TEX. LAB. CODE ANN. § 408.026 applied in this case. It is not known why Claimant failed to timely inform Petitioner of her workers’ compensation claim. To qualify for worker’s compensation coverage, she had to make a written report of her injury to her employer. Because she obviously submitted a workers’ compensation claim, she should have known that workers’ compensation coverage was at least a possibility for this treatment and so informed Petitioner. Additionally, on October 19, 2000, Petitioner wrote in Claimant’s medical history that she injured herself by lifting a cooking pot at her job on October 6, 2000. (Exh. 1, p. 14).Thus, Petitioner had some information prior to the surgery that should have alerted him to the possibility that Claimant was a workers’ compensation patient. (Petitioner admitted he was familiar with the Commission’s second opinion spinal surgery rule and had followed it in the past.)

Claimant’s surgery was not shown to be a medical emergency as defined in the Commission’s rule at 28 TAC § 133.206.^[3] Carrier did not waive its right to obtain the second opinion. It is up to a claimant, not a carrier, to inform a provider of the nature and kind of the claimant’s insurance coverage. There was no showing that Claimant’s failure to inform Petitioner that she had workers’ compensation coverage should be considered an extenuating circumstance which justifies making Carrier liable for the spinal surgery after being deprived of an important statutory right.

Whether through Claimant’s neglect or ignorance, Petitioner failed to comply with the statute or rules and Carrier is not liable to reimburse him for the spinal surgery, whether that surgery was medically necessary or not.

III. FINDINGS OF FACT

1. On October 26, 2000, Mark Kubala, M.D. (Petitioner) performed spinal surgery on ____. (Claimant) to treat an injury compensable under the Texas Workers’ Compensation Act (Act).
2. At the time Petitioner performed the spinal surgery, he did not know that Claimant’s injury was covered by Claimant’s employer’s workers’ compensation insurance.
3. The Texas Association of School Boards Risk Management Fund (Carrier) provided Claimant’s employer with workers’ compensation insurance at the time of her compensable injury.
4. Because neither Petitioner nor Claimant informed Carrier of the proposed spinal surgery, Carrier did not learn of the surgery until after the operation was performed
5. Claimant’s spinal surgery was not a medical emergency.
6. Prior to the surgery, Carrier did not waive its right to have a second opinion about the necessity of spinal surgery for Claimant.
7. Failure of Claimant to inform Petitioner about her workers’ compensation claim was not an extenuating circumstance that justified denying Carrier’s right to have a second opinion about the surgery.
8. All parties appeared or were represented at the hearing in this matter.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR CODE ANN. § 413.031.
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(d) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX.ADMIN.CODE (TAC) § 133.305(g).
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
5. Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i).
6. Pursuant to the Act, an employee who has sustained 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 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. TEX. LAB. CODE ANN. § 408.021(a).
7. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE. 401.011(31).
8. Pursuant to TEX. LAB. CODE ANN. § 408.026 and the Commission’s rule at 28 TEX. ADMIN. CODE § 133.206(b), Carrier is not liable to Petitioner for Claimant’s spinal surgery because that surgery was performed without Carrier being allowed to request a second opinion as to the necessity of the surgery and none of the statutory exceptions applied to Claimant’s situation.

ORDER

IT IS ORDERED that Petitioner Mark Kubala, M.D. is not entitled to reimbursement from the Texas Association of School Boards Risk Management Fund for the spinal surgery performed on _____ on October 26, 2000.

Signed this 10^th day of May 2002.

SUZANNE MARSHALL
Administrative Law Judge

1. TEX. LAB. CODE ANN. §§ 408.026. Spinal Surgery Second Opinion. (a) Except in a medical emergency, an insurance carrier is liable for medical costs related to spinal surgery only if: (1) before surgery, the employee obtains from a doctor approved by the insurance carrier or the commission a second opinion that concurs with the treating doctor’s recommendation; (2) the insurance carrier waives the right to an examination or fails to request an examination before the 15th day after the date of the notification that surgery is recommended; or (3) the commission determines that extenuating circumstances exist and orders payment for surgery. (b) The commission shall adopt rules necessary to ensure that an examination required under this section is performed without undue delay.↑
2. 28 TAC § 133.206 (b) Carrier Liability for Spinal Surgery Costs. (1) Subject to the provisions of paragraph (4) of this subsection, the carrier is liable in any of the following situations for the reasonable and necessary costs of the proposed type of spinal surgery and the medically necessary care related to the spinal surgery. The surgery must be related to the compensable injury and performed by a surgeon who was on the List at the time the TWCC-63 was filed with the commission by the treating doctor or the surgeon. The carrier is liable in the following situations: (A) medical emergencies; (B) carrier waiver of second opinion; (C) no carrier request within 14 days of acknowledgment date, for a second opinion; (D) concurrence by both second opinion doctors; (E) no timely appeal after two second opinions, only one of which is a concurrence; (F) final and nonappealable commission order to pay.↑
3. 28 TAC § 133.206(a)(2) Medical emergency–A diagnostically documented condition including but not limited to: (A) unstable vertebral fracture of such critical nature that increased impairment may result without immediate surgical intervention; (B) bowel or bladder dysfunction related to the spinal injury; (C) severe or rapidly progressive neurological deficit; or (D) motor or sensory findings of spinal cord compression.↑