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 January 30, 2004. The hearing officer determined that because the appellant’s (claimant) request for a hearing on the Independent Review Organization’s (IRO) decision on a proposed spinal surgery was not received by the Chief Clerk of Proceedings of the Texas Workers’ Compensation Commission (Commission) within 10 days of the receipt of the IRO decision, the request is not timely and the hearing officer lacks jurisdiction over the matter and, therefore, the IRO decision is the final decision and order of the Commission. The claimant appealed, asserting that his request was timely filed and that the IRO decision should not be final. The respondent (carrier) urged affirmance.

DECISION

Affirmed.

The hearing officer found that the claimant did not timely dispute the IRO decision by filing a written appeal pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 133.308(v) (Rule 133.308(v)) within 10 days after receipt of the IRO decision. The hearing officer determined that the IRO decision was sent to the claimant on December 1, 2003, and by presumption, the claimant was deemed to have received the IRO decision 5 days later on December 6, 2003. See Rule 102.5(d). In order for the appeal to be timely, the claimant must file an appeal with the Commission within 10 days of receipt of the IRO decision. In evidence is a letter dated December 10, 2003, that purports to be the claimant’s request for an appeal of the IRO decision. The hearing officer determined that the Commission received the claimant’s written request for an appeal disputing the IRO decision on January 20, 2004. The hearing officer determined that the claimant failed to timely request a hearing regarding the IRO decision, and that she lacked jurisdiction to decide the matter. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence, including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). In view of the evidence, we cannot conclude that the hearing officer’s determination is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The decision and order of the hearing officer is affirmed.

The true corporate name of the insurance carrier is CLARENDON NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

UNTIED STATES CORPORATION COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Veronica L. Ruberto

CONCUR:

Judy L. S. Barnes
Appeals Judge

Chris Cowan
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). Following a contested case hearing held on March 6, 2002, the hearing officer resolved the sole disputed issue by finding that the great weight of the medical evidence is not contrary to the recommendations for spinal surgery from the respondent’s (claimant) surgeon and his second opinion doctor. She concluded that the claimant’s request for spinal surgery is approved and ordered the appellant (carrier) to pay for it. The carrier has requested our review and contends that “the great weight of the other medical evidence outweighs the surgical opinion evidenced in this claim and respectfully requests a reversal.” The claimant filed a response, urging the sufficiency of the evidence to support our affirmance.

DECISION

Affirmed.

The parties stipulated that the claimant’s second opinion doctor issued a concurrence with the lumbar spine surgery proposed by the claimant’s surgeon and that the carrier’s second opinion doctor issued a nonconcurrence with the proposed surgery. The claimant testified that her first lumbar spine surgical procedure, performed on February 8, 2001, failed; that her surgeon proposes the revision surgery, which includes a fusion; that her surgeon explained the risks involved; and that both her surgeon and second opinion doctor feel that the proposed surgery will improve her condition. The carrier’s second opinion doctor felt that the claimant has no spondylolysis or spondylolisthesis to account for pain from spinal hypermobility and that the claimant’s lumbar disc “bulges” are not significant. The claimant’s second opinion doctor felt that tests showed that the claimant has disruption of the discs at L4-5 and L5-S1, that all the various conservative measures have failed, and that he concurs with the need for the surgery proposed by the claimant’s surgeon.

The hearing officer found that the claimant’s second opinion doctor reviewed the medical records and test results and examined the claimant before issuing his concurrence in the proposed surgery, and that the great weight of the medical evidence is not contrary to the recommendations for the spinal surgery issued by the surgeon and the claimant’s second opinion doctor. The surgeon’s Recommendation for Spinal Surgery (TWCC-63) was apparently filed with the Texas Workers’ Compensation Commission (Commission) in October 2001. Since this TWCC-63 was filed with the Commission after July 1, 1998, but prior to January 1, 2002, this spinal surgery dispute is governed by the provisions of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 133.206 (Rule 133.206). See Rule 133.206(m). Rule 133.206(k)(4) provides, in part, that

[o]f 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 and they will be upheld unless the great weight of medical evidence is to the contrary. . . .

We are satisfied that the challenged findings are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is EMPLOYERS MUTUAL CASUALTY COMPANY and the name and address of its registered agent for service of process is

HOWARD ORLA DUGGER

1702 NO. COLLINS BLVD. #200

RICHARDSON, TEXAS 75080-0260.

Philip F. O'Neill
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Roy L. Warren
Appeals Judge

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 November 27, 2001. With respect to the issue, the hearing officer determined that the appellant (carrier) may not avoid liability for spinal surgery because there is a second concurring opinion for spinal surgery. The carrier appeals, contending that the hearing officer erred in (1) refusing to add an issue for determination at the CCH concerning the extent of the respondent’s (claimant) compensable back injury; (2) refusing to admit some of the carrier’s exhibits into evidence; and (3) finding that the carrier may not avoid liability for the spinal surgery. The claimant responds, urging affirmance.

DECISION

Affirmed.

LIABILITY FOR SPINAL SURGERY

There is sufficient evidence to support the hearing officer’s determination that the carrier is liable for the recommended spinal surgery. The claimant's second opinion doctor concurred with the surgeon's recommendation for spinal surgery, and the carrier's second opinion doctor did not. In accordance with Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 133.206(k)(4) (Rule 133.206(k)(4)), the hearing officer gave presumptive weight to the two opinions which had the same result and determined that the carrier is liable for spinal surgery. The report of the claimant's second opinion doctor is a concurrence under Rule 133.206(a)(13).

REFUSAL TO ADD AN ISSUE

The hearing officer did not err in refusing to add the issue requested by the carrier. By letter dated October 17, 2001, the carrier’s representative requested a CCH, to contest spinal surgery; there is no reference to any other issue. Rule 142.7(f) sets forth the requirement for determining disputes without the benefit of a prior benefit review conference and provides that the statement of disputes^[1] includes the request for hearing, as described in Rule 142.5(c) and the other party’s response. Rule 142.5(c) provides that the request shall identify and describe the disputed issue or issues. We note that the request for the CCH was made on October 17, 2001, and the only issue concerned whether the claimant was entitled to spinal surgery. The hearing officer correctly declined to add the issue requested by the carrier. We find no error.

EXCLUSION OF EVIDENCE

Rule 133.206(k)(4) provides: “The only opinions admissible at the hearing are the recommendation of the surgeon and the opinions of the two second opinion doctors.” The carrier has not shown reversible error in the hearing officer's ruling excluding from evidence Carrier’s Exhibit Nos. 1 through 10. We note that Carrier’s Exhibit No. 10 is a peer review report wherein it states, “The opinion rendered in this case are the opinions of this evaluator.” Because this “opinion” is not from the surgeon or one of the two second opinion doctors, it was properly excluded. Although the hearing officer may have improperly excluded exhibits 1 through 9 based on Rule 133.206(k)(4), any error was harmless error since the documents were not relevant to determination of the issue properly before the hearing officer.

The hearing officer's decision and order are affirmed.

The true corporate name of the insurance carrier is TRANSPORTATION INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Michael B. McShane
Appeals Judge

CONCUR:

Chris Cowan
Appeals Judge

Robert W. Potts
Appeals Judge

1. Rule 142.7(a) provides as follows, ”The statement of disputes is a written description of the benefit dispute or disputes to be considered by the hearing officer. A dispute not expressly included in the statement of disputes will not be considered by the hearing officer.”

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