DECISION AND ORDER

I. PROCEDURAL HISTORY

Petitioner, Liberty Mutual Fire Insurance Company (Carrier), appealed the Findings and Decision of the Texas Worker’s Compensation Commission’s (TWCC) Medical Review Division (MRD) ordering reimbursement to Floyd O. Hardimon, M.D. (Provider) for medical services provided to ____ (Claimant). This decision denies reimbursement to the Provider.

The Administrative Law Judge convened a hearing on January 23, 2003. After allowing the parties to file written closing statements, the record closed February 14, 2003. Carrier was represented by Shannon Butterworth, attorney, and Provider was represented by Linda Mallet.

II. EVIDENCE AND BASIS FOR DECISION

The issue presented in this preceding is whether Carrier should reimburse Provider $815.50 for allegedly assisting Eric Sheffey, M.D. in a post laminectomy and L2-S1 fusion. Provider billed $815.50 as the assistant surgeon for the procedure, but Carrier denied payment on the basis that the procedure was incidental to the primary procedure and did not warrant separate reimbursement. Carrier asserted that there was no evidence of a need for an assistant surgeon and no evidence Provider was in the operating room 70% of the time, if at all.^[1]

Based on the evidence, ALJ concludes that Carrier’s appeal should be affirmed. The particular facts, reasoning, and legal analysis in support of this decision are reflected below in the Findings of Fact and Conclusions of Law.

III. FINDINGS OF FACT

1. On_________, ____ (Claimant) suffered a compensable injury to his back.
2. Claimant’s injury is covered by worker’s compensation insurance written for Claimant’s employer by Liberty Mutual Fire Insurance Company (Carrier).
3. Eric Scheffey, M.D., treated Claimant’s injury by performing surgical procedures on October 31, 2001.
4. Floyd Hardimon, M.D. (Provider) submitted an invoice as the assistant surgeon for Dr. Sheffey’s surgical procedures.
5. Carrier denied payment on the basis that the procedure billed was incidental to the primary procedure, and did not warrant separate reimbursement because Provider had no justification to bill for his services.
6. Provider timely requested dispute resolution by the Texas Workers’ Compensation Commission Medical Review Division (MRD).
7. The MRD issued its findings and decision on October 8, 2002, concluding that the disputed expenses should be paid, and Carrier timely appealed this decision.
8. Provider’s evidence failed to establish a need for an assistant surgeon.
9. The operating report and the anesthesia record did not indicate Provider was in the operating room during the surgical procedures.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (TWCC) has jurisdiction to decide the issues presented pursuant to Tex. 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 Order, pursuant to Tex. Labor Code §413.031 and Tex. Gov’t Code ch. 2003.
3. The Notice of Hearing issued by TWCC conformed to the requirements of Tex. Gov’t Code §2001.052 in that it 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 section of the statutes and rules involved; and a short plain statement of the matters asserted.
4. The Carrier has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Tex. Labor Code §413.031.
5. Provider failed to meet the requirements of Medical Fee Guideline, General Instructions, Section VIII(C), on the basis that Provider failed to substantiate that he was in the operating room 70% of the time, and failed to substantiate that there was a need for an assistant surgeon.
6. Based Conclusion of Law No. 5, Provider’s charges should be included in and global to Dr. Scheffey’s charges.

ORDER

IT IS, THEREFORE, DENIED that Liberty Mutual Fire Insurance Company reimburse Floyd Hardimon, M.D.

Issued this 27^th day of March 2003.

STEPHEN J. PACEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The Medical Fee Guidelines, General Instructions, Section VIII(C) provides: 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.↑