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December 11, 2001


December 11, 2001


East Harris County Orthopedic Associates, P.A. (Petitioner) appealed the findings and decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in MDR Docket No. M4-00-2189-01. On October 11, 2000, the MRD denied reimbursement for surgical services provided to (Claimant) and upheld Texas Worker’s Compensation Insurance Fund’s (Carrier) denial of reimbursement based on Petitioner’s lack of spinal surgery approval or the presence of an emergency. In this decision, the Administrative Law Judge (ALJ) finds that Petitioner’s treatment is entitled to payment and that Carrier reimburse Petitioner $5000 plus interest.


There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter was held August 8, 2001, at the Hearings Facility of the State Office of Administrative Hearings, Stephen F. Austin Building, Suite 1100, 1700 North Congress Avenue, Austin, Texas, with ALJ Stephen J. Pacey presiding. Carrier appeared through its attorney, Patricia Eads, and Eric H. Scheffey, M.D represented Petitioner and appeared telephonically. Commission was not represented and did not file a notice of non-appearance.[1] After the introduction of evidence and arguments, the hearing proceeded without appearance of the Commission and concluded the same day. The record closed on August 15, 2001, after the parties were allowed one week to file additional evidence. The ALJ reopened the record on October 1, 2001, to obtain a copy of a rule as it existed in 1994. The record was closed October 15, 2001.


The issue is whether the spinal surgery recommendation issued in August 1994, was still effective in August 1999, and if not was the spinal surgery authorized because there was an emergency that necessitated immediate spinal surgery.

The ALJ holds the applicable rules were those in place at the time the approval was issued. Under those rules, Commission approval issued in 1994 was still effective in 1999. In a letter dated March 3, 1997, the Acting Executive Director of Commission indicated that the approval for surgery did not expire, under the rules in effect when the spinal concurrence was given.

Since the approval for spinal surgery was still in effect, whether or not the spinal surgery was an emergency is moot. If this was still an issue, the evidence overwhelmingly indicated that the spinal surgery was not an emergency. After Claimant’s original diagnoses on August 6, 1999, Claimant was moved to another hospital, and the surgery was performed four days later. A true emergency would require an immediate operation.

Once a determination is made that Commission’s 1994 recommendation for spinal surgery was in effect in1999, a detailed discussion whether or not an emergency existed will not be made in this Proposal for Decision because it is not a necessary element of the case.


A. Background Facts

On May 4, 1993, Claimant sustained an injury to his back that was compensable under the Act. In particular, Claimant was diagnosed with a herniated disk at L4-L5 and L5-S1 and a ruptured disk at L4-L5. These injuries resulted from Claimant lifting a pipe while working for his employer. After a lumbar myelogram and an MRI indicated the extent of the injuries, Petitioner requested approval for spinal surgery. Petitioner requested approval for a Lumbar Laminectomy with Fusion Instrumentation. Carrier requested a second opinion from Michael G. Kaldis, M.D., who agreed with Petitioner’s diagnosis that Claimant needed spinal surgery. While Dr. Kaldis agreed that Claimant required spinal surgery, he did not recommend fusion; he recommended a decompressive procedure.

After receiving Dr. Kaldis’ second opinion, Petitioner, on August 3, 1994, received Commission’s Statement of Status of Spinal Surgery Recommendation, that notified Petitioner that the spinal surgery could be scheduled and Carrier would be liable for payment. Rather than perform the surgery immediately, Petitioner choose to treat Claimant with more conservative modalities such epidural steroid injections. Claimant ’s symptoms seemed to improve until the summer of 1999, when he had an acute onset of pain. Claimant went to the emergency room at San Jacinto Hospital and was subsequently transferred to Doctors Hospital - Tidwell. Four days later, Floyd Hardimon, D.O., performed the spinal surgery with Eric Scheffey, M.D., as the assistant surgeon. This dispute applies to the $5,000 charged by Dr. Scheffey for the assistant surgeon’s services.[2]

B. Petitioner’s Assertions and Evidence.

Petitioner’s argument was very simple. Dr. Scheffey asserted that the1991 rules did not place a time limit on the surgery once it was approved. He also asserted that the 1991 rules only required Dr. Kaldis’ second opinion to generically approve the spinal surgery. He argued that the second approval was not required to agree with the specific type of spinal surgery.[3] Petitioner asserted that once Carrier became liable for the costs of the spinal surgery, the liability did not expire. Carrier was liable for his1999 services as the assistant surgeon.

In support of Petitioner’s argument, it offered Commission’s Statement of Status of Spinal Surgery Recommendation.[4] This document indicated that the second opinion examination concurred with the treating doctor’s recommendation for spinal surgery. It also indicated that the recommended spinal surgery could be scheduled and Carrier would be liable for payment. Also, in support of its argument, Petitioner offered its most probative evidence, which was Mr Robert M. Marquette’s letter dated March 3, 1997.[5] Mr. Marquette, who was Acting Executive Director of the Commission at that time, indicated that the rule does not have a statutory time limit. Mr. Marquette’s letter also stated that he agreed with Petitioner and that a concurrence for spinal surgery does not expire. Mr. Marquette was apparently answering Petitioner’s inquiry concerning another patient that had received a second opinion for spinal surgery in September of 1995. Mr. Marquette stated that although the concurrence for spinal surgery was over two years old, it was still valid.

Petitioner asserted that not only did it have approval to perform the surgery, the spinal surgery had to be performed because of the spinal injury’s emergent nature in 1999. He indicated that Claimant ’s acute pain in 1999 was caused by a disc rupture that resulted in a neurological deficit. He claimed that Claimant’s condition was emergent in nature and would have caused paralysis in his lower extremities. Both Petitioner and Dr. Hardimon diagnosed Claimant with drop foot, which is the lack of control of the foot caused by the loss of feeling. Petitioner argued that the ruptured disk caused the lack of feeling in Claimant ’s foot, and this was a rapidly progressive neurological deficit.[6]

C. Carrier’s Assertions and Evidence.

Carrier raised five major arguments: 1. Petitioner did not comply with1 TAC § 133.206, which was in effect 1999; 2. if the1994 rule is the proper rule, the Appeals Panel determined that under the1994 rule, the approval was not open-ended, and that the approval could not be redeemed any time; 3. the surgeon on the TWCC 63 was Dr. Sheffey not Dr. Hardimon, who did the surgery; 4. the surgery was not preauthorized; and, 5. the surgery was not required because there was no emergency.

Applicable Rules and Appeals Panel Decision.[7]

Carrier argued that Petitioner did not comply with either the 1999 rules or the 1994 rules. In support of its argument concerning the rules in place in 1999, Carrier asserted that 1 TAC §133.206 outlines the required steps that must be taken in order to receive reimbursement for spinal surgery and related services. Carrier indicated that Petitioner complied with none of the provisions of 1 TAC § 133.206(b)(1),[8] and therefore, Carrier is not responsible for reimbursement for spinal surgery under the 1999 rules.

Even though 28 TAC §133.206 (effective November 1, 1994)[9] is silent the period of time between approval and surgery, Carrier argued that the Appeals Panel Decision (Panel) N0. 166 held that the approval can not be redeemed at any time. The Panel held that Tex. Lab. Code (Code) §408.026 neither provides that approval of spinal surgery will be in the nature of a standing approval nor that it will only remain in force a limited time. Carrier indicated that the Panel further reasoned that the Code does emphasize that examinations relative to a question of spinal surgery be done without undue delay. Carrier pointed out that the Panel also stated that while a reasonable period of time after approval should be allowed, the Panel could not say that the section requires that approval of spinal surgery, one given, may then be redeemed at any time.[10] Carrier argued that the Panel noted that this was especially true when the circumstances were changed. In 1994, the diagnoses of the second doctor was significantly different than the operation in 1999. Carrier asserted that this indicated a change of circumstances and that the type spinal surgery performed in 1999 was not medically necessary.

Lack of Preauthorization for Surgical Services.

Carrier argued that Petitioner did not have preauthorization for his services because Petitioner did not comply with the provisions of 28 TAC § 134.600. Carrier asserted that the services were not preauthorized by Carrier; not ordered by the commission; and not performed as the result of a medical emergency. Carrier pointed out that one of these conditions must be met to establish its liability for the reasonable and necessary medical costs.

Name of Surgeon.

Richard Ball, Respondent’s Senior Dispute Analyst, testified on the progression of the rules concerning spinal surgery and the forms necessary to obtain approval for spinal surgery. Mr. Ball testified that a TWCC 63[11] was the necessary form for a recommendation of spinal surgery. Mr. Ball indicated that Petitioner’s TWCC 63 listed Dr. Scheffey as the spinal surgeon, but in 1999, Dr. Hardimon performed the spinal surgery. Carrier argued it was not liable for Petitioner’s services because the TWCC 63 was incorrect.

1999 Rule.

Carrier argued that the 1994 approval for spinal surgery was no longer effective, and since the operation was not conducted under emergent circumstances, the Petitioner must receive approval according to the provisions of 28 TAC § 133.206. Carrier pointed out that Petitioner did not comply with any of this rule’s requirements, and as a result, is not entitled to any reimbursement.


Dr. Scheffey and Dr. Hardimon diagnosed Claimant with drop foot. They claimed that the back problem caused a nerve to stop working downstream to the foot, causing the foot to fall flat. Carrier argued that all the evidence indicates that Claimant did not have drop foot and did not have a severe or progressive neurological deficit.

Clark Watts, M.D., a neurological surgeon, testified for Carrier. He testified that the emergency physician, Fayaz Faiz, M.D., reported that the Motor System Examination showed a normal power in the lower extremities of 5/5. Dr. Watts testified that there was no evidence in Dr. Faiz’s report to indicate drop foot. Dr. Faiz’s performed an EMG and Nerve Conduction Report, and Dr. Watts testified Dr. Faiz’s post testing report showed the motor recruitment to be grossly within legal limits. Dr. Watts further testified that the report showed no evidence of drop foot. Carrier argued that the emergency doctor would have noticed drop foot and reported it, if the Claimant had showed any symptoms.

Carrier asserted four days elapsed between the time he was first admitted to the emergency room and the time of Claimant’s spinal surgery. Dr. Watts testified that a true emergency would necessitate immediate surgery.

D. Analysis and Recommendation.

Claimant’s condition in 1999 did not constitute an emergency.

The evidence indicates that the Claimant’s condition, although acute, was not an emergency. Four days elapsed between the time the Claimant was seen in the emergency room and the operation. It is reasonable to assume that a true emergency requires immediate attention. Dr. Watts’ testimony was persuasive, and the ALJ concludes that there was nothing in Dr. Faiz’s examination report or his test report to indicate that Claimant’s spinal condition was emergent. No further analysis of Claimant’s condition will be made because the ALJ believes the 1994 approval was still effective for the spinal surgery performed in 1999. Since the 1994 approval was still effective, an emergency is unnecessary to establish Carrier’s liability for Petitioner’s cost of service.

The error on the TWCC 63 did not relieve Carrier from liability.

Before discussing the approval, it is necessary to examine the question of whether Dr. Sheffey’s designation as the surgeon on the TWCC 63 relieves Carrier’s liability because Dr. Hardimon did the surgery. The rules effective when the approval was made,[12] required the treating physician to designate the surgeon who would do the surgery.

Petitioner did not address this point, but it does merit discussion. The ALJ does not believe this inconsistency relieves Carrier of liability for two reasons. First, not only was Petitioner the treating doctor, but also he was the assistant surgeon. He was not totally removed from the operation. Second, and more importantly, when Carrier’s witness, Mr. Ball, was asked whether Petitioner would, under the1994 rules, have been paid if this inconsistency existed, he replied that it would be questionable. The response questionable is not persuasive, especially when coming from Carrier’s own witness.

Additionally, the paramount question is whether the spinal surgery was necessary, not whether the surgeon was properly named on the TWCC 63.

Spinal surgery did not require preauthorization under 28 TAC § 134.600.

Carrier’s argument that Petitioner did not meet any of the criteria for preauthorization, and consequently Carrier is not liable, has no merit. The criteria for approval for spinal surgery is contained in 28 TAC §133.206 and its predecessors, not 28 TAC § 134.600. The treatments requiring preauthorization are specifically noted in subsection h of this rule, and spinal surgery is not one of the noted treatments. Spinal surgery needs approval either by Carrier or second opinion doctors; it does not require preauthorization.

The 1994 approval was in effect in 1999, and Carrier is liable for the costs of Dr. Scheffey’s services as assistant surgeon.[13]

The rules in effect 1999 were clear that the spinal surgery must be performed within one year from approval, and it is evident that Petitioner made no attempt to comply with the 1999 rules. However, these rules contain no provision allowing them to be applied retrospectively; therefore it is necessary to determine whether any limitation of time can be inferred from the rules in place in August 1994. In order to answer the question as to what length of time after approval spinal surgery must be performed, 28 TAC §§ 133.200-205 (1991 Rules) must be examined and interpreted. The 1991 Rules did not contain a time period between approval of spinal surgery and the time the spinal surgery is performed. To determine the intent of the Commission, the ALJ studied the rule that replaced the1991 Rules. The rule was 28 TAC 133.206 (1994 Rule), which was adopted effective November 1, 1994, shortly after the spine surgery was approved. The 1994 Rule was also silent as to the time period between approval and surgery. If Commission thought a time period was necessary, it can be inferred that Commission would have changed the Rules. The Code, in Section 408.026, is also silent as to any time period

Both parties introduced extrinsic documentary evidence that was intended to indicate Commission’s intent. Petitioner introduced Robert M. Marquette’s letter for the proposition that the Commission intent was that no time period was applicable.[14] Carrier introduced an Appeals Panel Decision No. 166 for the proposition that Commission’s intent was that the approval may not be redeemed at any time.

Apparently, Mr. Marquette’s letter was a response to Dr. Scheffey’s inquiry about another patient. Mr. Marquette indicated that the 1994 rules did not contain a statutory time limit. His letter was very persuasive because it plainly indicated that a concurrence for spinal surgery does not expire. The ALJ believes this is the most probative evidence in the case. It indicated that the Executive Director considered the rules and assumed it was Commission’s intent not to place a time limitation between the approval and surgery.

The 1991 rule and the 1994 rules simply do not have a time limitation, and without any direction one can not infer one. The MRD relied on and Carrier argued the Appeals Panel Decision No. 166 interpreted the rule and decided that the approval or concurrence could not be redeemed at any time. The ALJ does not agree with the logic used be the Appeals Panel Judge. The Panel Judge reasoned that Code Section 408.026, titled Spinal Surgery Second Opinion, indicated that the second examination should be performed without undue delay. The Judge then took a leap in logic, and reasoned that if the second opinion needed to be performed without undue delay, then there must be some time limit on the spinal surgery. He further reasoned that because the 1991 Rules require time period for the second opinion doctors to file their reports, the surgery can not be redeemed at any time.

It is obvious that the person needs the second opinion without undue delay, and it is also obvious that once the second examination is completed, the report should be received in a timely manner. It does not follow that because there are limitations on the timeliness of the second opinion,

there is a time limitation for the spinal surgery. Since Commission was concerned with time limits for the second opinion and the doctor’s report, it is logical to assume the Commission intentionally did not place a time period for the spinal surgery. To accept the Panel Judge’s decision, one must assume the omission of a spinal surgery time period in the 1991 rules was a Commission mistake. One must also assume it made the same mistake when the rules were changed three years later. The Panel decision borders on activism, inferring that a rule means what it does not say.

This ALJ places great deference on an agencies interpretation of its own rules. The Commission’s Acting Executive Director rendered this interpretation in his March 3, 1997, letter. His letter stated that a concurrence for spinal surgery does not expire. He was interpreting the 1994 Rule, but the absence of a time period was the same as the 1991 Rule. This is a much more probative statement than the Panel Judge placing an indeterminable time limitation by using, by analogy, other parts of the rule that do have time limitations.

The ALJ concludes that the Commission’s 1994 approval did not expire and was still effective in 1999. Since the approval was effective at the time of spinal surgery, the Carrier is liable for the $5,000 charged by Dr. Scheffey for his Assistant Surgeon services.


  1. On May 4, 1993, (Claimant) suffered an injury to his back compensable under the Texas Workers’ Compensation Act (Act).
  2. Claimant was diagnosed with a ruptured disk at L-4 and a herniated disc at L4-L5 and L5-S1.
  3. After a Lumbar Myelogram and an MRI indicated the extent of Claimant’s injury, Eric Scheffey, M.D., requested approval for spinal surgery, a Lumbar Laminectomy with Fusion Instrumentation.
  4. On June 9, 1994, Carrier requested second opinion by another doctor.
  5. On July 15, 1994, Michael G. Kaldis, M.D., agreed that Claimant needed spinal surgery.
  6. On August 3, 1994, Commission transmitted to Dr. Scheffey a Statement of Status of Spinal Surgery Recommendation in which the Commission advised Dr. Scheffey that the recommended spinal surgery could be scheduled and the Carrier would be liable for payment.
  7. Rather than operate immediately, Dr. Scheffey treated Claimant with steroid injections.
  8. On March 3, 1997, Dr. Scheffey received a letter from Robert M. Marquette, acting Executive Director of the Commission, which advised Dr. Scheffey that the rules did not have any limitation as to time, and that an approval for spinal surgery may be redeemed at any time.
  9. Claimant ’s symptoms improved until August, 1999, when Claimant experienced an acute onset of pain.
  10. On August 6, 1999, Claimant was admitted to San Jacinto Hospital’s emergency room.
  11. Floyd Hardimon, D.O., and Dr. Scheffey diagnosed Claimant with drop foot.
  12. Fayaz Faiz, M.D.,the emergency physician, did not diagnose Claimant with drop foot.
  13. Claimant was transferred to Doctor’s Hospital-Tidwell, and on August 10, 1999, Dr. Hardimon, with Dr. Scheffey assisting, performed lumbar spinal surgery on the Claimant.
  14. Four days elapsed between the time Dr Hardimon and Dr. Scheffey diagnosed Claimant with an emergency neurological deficit, drop foot, and the spinal surgery.
  15. An emergency requires immediate medical attention.
  16. Carrier denied payment to Petitioner on the basis that it did not have approval for spinal surgery and the surgery was not necessitated by an emergency.
  17. The Commission’s Medical Review Division upheld Carrier’s denial of reimbursement.
  18. Petitioner timely appealed the MRD decision denying reimbursement.


  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers' Compensation Act (the Act), TEX. LABOR CODE ANN. § 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 § 413.031(d) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
  3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV'T CODE ANN. ch. 2001.
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
  5. Commission recommended spinal surgery on August 3, 1994, and neither the rules in effect on that date, 28 TAC §§ 133.200-205, nor the rule that was adopted shortly thereafter, 28 TAC §133.206, prescribed a time limit in which the surgery had to be commenced after approval of the spinal surgery.
  6. The Act in Section 408.026 also did not prescribe a time limit in which the surgery had to be commenced after approval of the spinal surgery.
  7. In 1997, the Commission amended 28 TAC § 133.206 to limit the time between the approval of the spinal surgery and the commencement of the surgery to one year, but there is nothing in the rule that provides the rule may be applied retrospectively.
  8. Based on Findings of Fact Nos. 12-15 Claimant ’s operation was not emergent in nature.
  9. Based on Findings of Fact Nos. 5, 6, and 8 and Conclusions of Law Nos. 5-7, Carrier is liable for Petitioner’s services in the surgery because the recommendation of the Commission and the approval issued in 1994 was redeemable in 1999.
  10. Based on the foregoing, Petitioner’s claim for reimbursement from Carrier for charges for his services as assistant surgeon in 1999, should be granted.


IT IS ORDERED that East Harris County Orthopedic Associates, P.A. claim for reimbursement from Texas Worker’s Compensation Insurance Fund for assistant surgeon services provided by Eric H. Scheffey, M.D., and provided to on August 10,1999, is GRANTED. Texas Worker’s Compensation Insurance Fund is ORDERED to pay to East Harris County Orthopedic Associates, P.A., the sum of $5000 plus interest.

Signed this 11th day of December , 2001.

Administrative Law Judge

  1. Commission filed two statements of matters asserted. The one dated July 31, 2001, indicated that it would be represented by counsel, and the one dated August 1, 2001, indicated that it would not be represented by counsel.
  2. This case is novel because the primary issue does not involve medical necessity, but the interpretation of the rules concerning spinal surgery approvals in 1994, when the recommendation for the spinal surgery occurred.
  3. The spinal surgery recommendation was issued by the Commission on August 3, 1994. At that time, 28 tex. Admin. Code (TAC) §§ 133.200-133.205 governed the procedures necessary to establish Carrier’s liability for spinal surgery costs. These rules only required that the treating physician or the injured employee request approval and Carrier could require a second opinion. If the second opinion concurred that the spinal surgery was necessary, then Carrier would be liable for the costs. These rules did not require the concurring surgeon to concur to a specific surgery. They only required the surgeon to state whether spinal surgery was necessary. The rules also did not direct a certain time in which the spinal surgery must be performed.
  4. Effective November 1, 1994, Commission repealed 28 TAC §§ 133.200-133.205 and replaced them with 28 TAC 133.206. Again, no time period was specified in which the spinal surgery must be performed. The rule also stated in pertinent part: “Any indication by the qualified doctor that surgery to the proposed spinal area is needed is considered a concurrence, regardless of the type of procedure or level.” The specific type spinal surgery was not required in the November, 1994 rules.

    In 1997 and 1999, 28 TAC 133.206 was amended, and these amendments require that the proposed surgery be completed one year from approval. They also provide that the surgeon offering the second opinion must concur not only that the spinal surgery is necessary, but the surgeon must also concur with the specific surgical procedure proposed to be performed.

    None of these rules apply retrospectively; therefore the rules which were in effect August 3, 1994, control in this hearing. The effective rules were adopted in the January 18, 1991, Texas Register (16 TexReg 316) as published in the October 26, 1990 Texas Register (15 TexReg 6180),.

  5. Page 26 of the Certified Record.
  6. Page 33 of the Certified Record
  7. The 1991 rules control the question of the second approval, but the 1999 rules control whether there was an emergency because the purported emergency occurred in 1999. Medical emergency is defined in 1 TAC §133.206(a) (2), which states in pertinent part: “A diagnostically documented condition including but not limited to: ... (c) severe or rapidly progressive neurological deficit.”
  8. A complete discussion of the genesis of the rules is contained in footnote #3 on page 3.
  9. Section (b)(1) indicates that the insurance Carrier is responsible for the costs associated with spinal surgery when any of the following apply:
  10. A. medical emergencies.

    B. carrier waiver of second opinion.

    C. no Carrier request within 14 days for a second opinion.

    D. concurrence of both second opinion doctors.

    E. no timely appeal after 2 second opinions, only on of which is a concurrence.

    F. final order from the Commission.

  11. Carrier argued the provisions of 28 TAC §133.206, effective November 1, 1994, when the applicable rules are 28 TAC §§133.200-205 adopted January 18,1991. The approval for the spinal surgery was given in August 1994; therefore 28 TAC §133.206 was not in existence. From a content basis it makes little difference because 28 TAC §§133.200-205 are also silent as to any time limitation between approval and surgery.
  12. The MRD based its decision solely on the basis of this Appeals Panel Decision.
  13. The TWCC 63 is the form entitled Required Medical Report: Spinal Surgery Recommendations.
  14. 28 TAC §§ 133.200-205
  15. This case is fact specific, and should not be used for a general proposition that an approval under the old rules is good in perpetuity.
  16. Mr. Marquette was Acting Executive Director of the Commission when he wrote March 3, 1997 letter.
End of Document