This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on November 19, 2001. In resolving the issue before him, the hearing officer determined that the appellant’s (claimant) request for spinal surgery should not be approved. The claimant appealed, seeking reversal or, in the alternative, that the Appeals Panel order the respondent (carrier) to pay for tests sought by her doctors in the spinal surgery process. The carrier responded, urging affirmance.
DECISION
Reversed and rendered.
The hearing officer erred in determining that the claimant’s spinal surgery should not be approved. The claimant initiated the spinal surgery procedures with the recommendation made by her doctor, Dr. M, that she have spinal surgery consisting of a pedicle fixation and lateral mass fusion at L5-S1. The carrier requested a second opinion from Dr. B, who did not concur with a need for spinal surgery. Then, the claimant saw another second opinion doctor, Dr. H, who, in a spinal surgery opinion report dated August 22, 2001, stated that he did not concur with the need for surgery “at this particular time, because additional testing is needed. . .,” and specifically notes that lumbar discography at L3-L4, L4-L5, and L5-S1 levels, as well as a caudal epidural steroid block would be “valuable.” After Dr. H’s August 22, 2001, report, the Texas Workers’ Compensation Commission (Commission) sent out a spinal surgery result letter notifying the parties that neither of the second opinion doctors concurred with Dr. M’s recommendation for surgery.
On October 3, 2001, Dr. H sent out an amended report he entitled “Addendum to Second Surgical Opinion on August 22, 2001,” wherein he opined that since the carrier continued to deny the claimant the tests he recommended[1], he was going to concur with Dr. M and agree with the specific surgical procedure that he recommended. Dr. H also sent to the Commission a Spineline Fax Response Form, whereon he checked the block for the statement, “Yes, I agreed that the recommended procedure is needed,” and signed and dated the form. On October 5, 2001, the Commission sent out another spinal surgery result letter notifying the parties that one of the second opinion doctors agreed with Dr. M’s recommendation for surgery, creating a two to one decision in favor of spinal surgery and that, if the carrier does not file an appeal, it will be responsible for the costs thereof.
The statutory provision governing the spinal surgery approval process is Section 408.026 “Spinal Surgery Second Opinion,” which reads
(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;[2] 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 with undue delay. (emphasis added).
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE, § 133.206 (Rule 133.206) defines “concurrence” in Subsection (a)(13) as a second opinion doctor’s agreement that the surgeon’s proposed type of spinal surgery is needed, states that need is assessed by determining if there are any pathologies in the area of the spine for which surgery is proposed that are likely to improve as a result of the surgical intervention, and describes types of spinal surgery. Rule 133.206 defines “nonconcurrence” in Subsection 133.206(a)(14) as a second opinion doctor’s disagreement with the surgeon’s recommendation that a particular type of spinal surgery is needed. Rule 133.206(k)(4) continues to provide that, of the three recommendations and opinions (the surgeon’s and the two second opinion doctors’), presumptive weight will be given to the two which had the same result, they will be upheld unless the great weight of medical evidence is to the contrary, and that the only opinions admissible at the hearing are the recommendations of the surgeon and the opinions of the two second opinion doctors.
Rule 133.206(i) has the technical provisions governing the second opinion decisions and reports, which reads, in subsections relevant to the dispute at bar, as follows:
(i)The second opinion doctor’s opinion must be based on physical examination of the injured employee and review of the medical records and films forwarded by the surgeon. The second opinion doctor shall call the designated phone number at the division within two days after the exam to submit the results of a second opinion. . . . .
(ii)The second opinion doctor must complete a narrative report regarding the second opinion exam which indicates the second opinion doctor’s decision, and submit it to the division, the treating doctor, the surgeon, and the carrier, within ten days of the exam. The division will notify the employee of the decision(s) of the second opinion doctor(s). (emphasis added).
Neither party disputes that Dr. H complied with the provisions of Rule 133.206(i) when he submitted his August 22, 2001, report of non-concurrence for want of further diagnostic testing. The hearing officer improperly applies these time restrictions in Rule 133.206(i)(2-3) to Dr. H’s addendum, which was filed more as a change of opinion due to the static, available medical data he ultimately had, and not to that which he initially requested when faced with a determination of the need for the claimant’s proposed spinal surgery. Thus, Dr. H’s “addendum” to his August 22, 2001, opinion is just that; it is not a new report based on a change of condition or in keeping with a re-submission. It seems clear that while Dr. H thought it prudent to have all the diagnostic data he could garner before he concurred with Dr. M’s recommendation for spinal surgery, when Dr. H (and claimant) was denied further diagnostics, he reviewed the data he at hand and decided that, in those circumstances, he concurred with Dr. M. Thus, as a matter of law, as second opinion doctor has concurred with Dr. M, and the carrier will be liable for the costs of the proposed surgery.
Although the hearing officer relies heavily upon subsection (l) of Rule 133.206, entitled “Resubmitting the Issue of Spinal Surgery,” it clearly does not apply to this situation as the claimant did not resubmit to the spinal surgery process, nor did either party allege a change of condition.
We reverse the hearing officer’s finding that Dr. H’s October 3, 2001, concurrence may not be considered as one in connection with the claimant’s request for spinal surgery and render that Dr. H’s October 3, 2001, concurrence complies with the 1989 Act and relevant rules and is to be considered a concurrence as a matter of law, pursuant to Section 408.026(a).
Given that we have determined Dr. H’s Addendum to be a concurrence as a matter of law, we also reverse the hearing officer’s finding that the great weight of the medical evidence is not contrary to the recommendation against spinal surgery by Dr. B, and render that the great weight of the medical evidence is not contrary to the opinions in concurrence of Drs. M and H.
We therefore reverse the hearing officer’s determination that the claimant’s request for spinal surgery should not be approved and render that the claimant’s request for spinal surgery be approved and that the carrier be liable for all costs therefor.
The true corporate name of the insurance carrier is TRANSCONTINENTAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION
350 NORTH ST PAUL
DALLAS, TEXAS 75201.
Terri Kay Oliver – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Gary L. Kilgore – Appeals Judge