This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 22, 2001. The hearing officer held that the respondent (carrier) was not liable for the cost of spinal surgery because the two second opinion doctors did not concur with either the need for surgery or the type of surgery. The appellant (claimant) has appealed and the carrier seeks affirmance, pointing out that additional evidence attached to the appeal should not be considered.
DECISION
We affirm the hearing officer’s decision.
Regarding whether we may consider the evidence attached to the claimant’s appeal, we note that we do not normally consider new evidence for the first time on appeal. We may, however, in very limited circumstances, remand a case when new evidence is presented if that evidence came to the party’s knowledge after the CCH, if it is not cumulative of the evidence presented, if it was not through a lack of diligence that the evidence was not presented at the CCH for the hearing officer to consider, and if the evidence is so material that it would probably produce a different result. Texas Workers’ Compensation Commission Appeal No. 93536, decided August 12, 1993. In this case, there is nothing to show that the claimant could not have obtained the new opinion at an earlier time. We decline to consider the evidence submitted on behalf of the claimant for the first time on appeal.
The rule concerning second opinions for spinal surgery is Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 133.206 (Rule 133.206). Rule 133.206(a)(13) defines concurrence as an agreement by a second opinion doctor that the proposed type of surgery is needed. The hearing officer did not err in determining that there was no second concurring opinion, and he need not have given credit to an attempted amendment that was not signed by (and substantively corrected by) the second opinion doctor but by a staff person instead. Presumptive weight must be given to the two opinions which have the same result. Rule 133.206(k)(4). The decision that there were two non-concurring opinions is not so against the great weight and preponderance of the evidence as to be manifestly unfair or unjust. Atlantic Mutual Insurance Company v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). We affirm the hearing officer’s decision and order.
The true corporate name of the insurance carrier is FACILITY INSURANCE COMPANY and the name and address of its registered agent for service of process is
KATHLEEN THOMPSON, VICE PRESIDENT
2003 EAST LAMAR BLVD., SUITE 100
ARLINGTON, TEXAS 76006.
Susan M. Kelley – Appeals Judge
CONCUR:
Robert E. Lang
Appeals Panel
Manager/Judge
Michael B. McShane – Appeals Judge