DECISION AND ORDER

I. SUMMARY

East Harris County Orthopedic Associates (Petitioner) appealed a decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) denying reimbursement from Liberty Mutual Fire Insurance (Carrier) for surgical assistant services by a doctor (CPT Code 22852-80) that were provided to _____ (Claimant). The Administrative Law Judge (Judge) concludes reimbursement should be denied for Petitioner’s failure to document the attendance of the assistant surgeon in the operative session and the need for his assistance.

Judge Carol Wood convened a hearing on this matter on July 31, 2002, at the State Office of Administrative Hearings (SOAH) facility in Austin, Texas. Petitioner appeared through its representative, Deborah Cooks. Attorney Shannon Buttersworth represented Carrier. The Commission did not appear. The record closed that same day.

II. DISCUSSION

Claimant sustained a compensable worker’s compensation injury to his lower back on_______. On November 30, 2000, Floyd Hardimon, D. O., performed spinal surgery on Claimant. Carrier denied Petitioner reimbursement for the surgical assistant services of Eric Scheffey, M.D., and Petitioner sought medical dispute resolution from MRD. After considering the medical records presented in the certified record (Exhibit No. 1), MRD denied Petitioner’s claim for $158.00, finding that Petitioner failed to have any documentation to support the assistant surgeon’s performance in the operative session.

ccording to the ASurgery Ground Rules of the 1996 Medical Fee Guideline, 28 TEX. ADMIN. CODE § 134.201, “Modifier -80” is to be added to the usual procedure number for assistant surgeon services performed by a doctor. The rule further states the following:

Documentation on the operating room record shall indicate the amount of time spent by the assistant surgeon in the operative session and the need for an assistant surgeon. Documentation shall substantiate the attendance of the assistant surgeon 70% of the time during the performance of one operative session. The reimbursement shall be 25% of the listed MAR of the surgical procedure(s). [p. 69, Medical Fee Guideline]

The Judge finds no evidence in the record that shows Dr. Scheffey was assisting Dr. Hardimon 70% of the time during Claimant’s back surgery. Nor does the Judge find any evidence demonstrating why Dr. Scheffey’s assistance was needed. For these reasons, the Judge concludes that reimbursement of $158.00 to Petitioner under CPT Code 22852-80 should be denied.

III. FINDINGS OF FACT

1. Claimant _____ sustained a compensable worker’s compensation injury to his lower back on______.
2. Claimant’s injury is covered by worker’s compensation insurance written for Claimant’s employer by Liberty Mutual Fire Insurance (Carrier).
3. Floyd Hardimon, D. O., of East Harris County Orthopedic Associates (Petitioner) performed spinal surgery on Claimant on November 30, 2000.
4. Carrier denied reimbursement to Petitioner for the surgical assistant services of Eric Scheffey, M.D.
5. Petitioner filed a request for medical dispute resolution with the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) on May 25, 2001.
6. MRD issued its decision and findings on June 20, 2001, and denied reimbursement of Petitioner’s claim of $158.00.
7. Petitioner requested a hearing regarding MRD’s decision, and the matter was referred to the State Office of Administrative Hearings (SOAH).
8. Notice of the hearing was sent to the parties on February 27, 2002. The notice contained a statement of the time, place, and nature of the hearing; and a statement of the legal authority and jurisdiction under which the hearing was to be held. On July 22, 2002, the Commission sent the parties a short, plain statement of the matters asserted. The Commission’s statement of matters asserted included references to the particular statutes and rules involved.
9. A hearing was held on July 31, 2002, at SOAH’s hearings facility in Austin, Texas, and the record closed that same day.
10. No documentation demonstrates that Dr. Scheffey was assisting Dr. Hardimon 70% of the time during Claimant’s back surgery on November 30, 2000.
11. No documentation shows why Dr. Scheffey’s assistance was needed during Claimant’s back surgery on November 30, 2000.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to TEX. LABOR CODE (Labor Code) §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 an order, pursuant to Labor Code §413.031(k) and TEX. GOV’T CODE (Gov’t Code) ch. 2003.
3. Adequate and timely notice of the hearing was provided in accordance with Gov’t Code §§ 2001.051 and 2001.052.
4. The hearing was conducted pursuant to the Administrative Procedure Act, Gov’t Code ch. 2001, and the Commission’s rules, 28 TEX. ADMIN. CODE § 133.305.
5. Petitioner has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Labor Code §413.031.
6. Based on Findings of Fact Nos. 10 and 11, Petitioner is not entitled to reimbursement of $158.00 from Carrier under CPT Code 22852-80.

ORDER

The claim by Petitioner, East Harris County Orthopedic Associates, for payment of $158.00 from Liberty Mutual Fire Insurance is denied.

Issued this 10^th day of October, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

CAROL WOOD
Administrative Law Judge