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At a Glance:
Title:
453-01-2774-m5
Date:
April 14, 2003
Status:
Retrospective Medical Necessity

453-01-2774-m5

April 14, 2003

DECISION AND ORDER

I. Introduction

Texas Workers Compensation Insurance Fund (Carrier) has asked for a contested case hearing on a dispute previously decided by the Texas Workers’ Compensation Commission (TWCC) Medical Review Division (MRD) regarding medical services provided to ____ (Claimant). Spinal surgery (Spinal Surgery) was performed on the Claimant less than 14 days after his surgeon recommended it. Covenant Medical Center Lakeside (Provider) furnished hospital care (Disputed Services) to the Claimant that was directly related to that surgery.

On the dates that the Disputed Services were provided, the TWCC rules set out a spinal-surgery second-opinion process.[1] Under those rules:

. . . the carrier is liable in any of the following situations for the reasonable and necessary costs of the proposed type of spinal surgery and the medically necessary care related to the spinal surgery. The surgery must be related to the compensable injury and performed by a surgeon who was on the [TWCC] List [of approved surgeons] at the time . . . The carrier is liable in the following situations:

(A) medical emergencies;

(B) carrier waiver of second opinion;

(C) no carrier request within 14 days of acknowledgment date [of the recommended surgery], for a second opinion;

(D) concurrence by both second opinion doctors;

(E) no timely appeal after two second opinions, only one of which is a concurrence;

(F) final and nonappealable commission order to pay.[2]

In this case, the Carrier is only liable if there was a medical emergency that required the Spinal Surgery. The other bases for liability are inapplicable. No second-opinion doctor was appointed. The Carrier did not waive its right to ask for a second opinion. Less than 14 days passed between the recommendation of spinal surgery and that surgery. This case is the appeal of the Commission order.

MRD found that the Claimant required spinal surgery on an emergency basis. MRD also concluded that the Carrier was obligated to reimburse the Provider $33,654.64 for the Disputed Services.

There are only two disputed issues:

  • Did the Claimant need spinal surgery on an emergency basis?
  • If so, what was the appropriate level of reimbursement for the Disputed Services?

As set out below, the Administrative Law Judge (ALJ) finds that the Claimant did not need the spinal surgery on an emergency basis. That leads the ALJ to also find that the required second-opinion process was not followed. Accordingly, he concludes that the Provider is not entitled to reimbursement for the Disputed Services.

II. Did the Claimant Need Spinal Surgery on an Emergency Basis?

The evidence shows that the Claimant did not need the Spinal Surgery on an emergency basis. On the dates of service, the Commission’s second-opinion-process rules defined “medical emergency” as:

A diagnostically documented condition including but not limited to:

(A) unstable vertebral fracture of such critical nature that increased impairment may result without immediate surgical intervention;

(B) bowel or bladder dysfunction related to the spinal injury;

(C) severe or rapidly progressive neurological deficit; or

(D) motor or sensory findings of spinal cord compression.[3]

More generally, the TWCC’s rules defined “a medical . . . emergency” as:

a medical emergency consists of the sudden onset of a medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health and/or bodily functions in serious jeopardy, and/or serious dysfunction of any body organ or part.[4]

Clearly, the Claimant was not faced with most of these types of emergencies. He was not having bowel or bladder problems, and there was no evidence of a vertebral fracture, spinal cord compression, or that his health, organs, or bodily functions or parts were in serious jeopardy. Nevertheless, the Claimant’s spinal surgeon, Robert V. Carr, M.D. (Surgeon), believed the Claimant had signs of potential neurological damage and needed surgery on a high priority basis.

The Claimant was having lower back pain and some pain radiating into his lower extremities. In the weeks before the surgery, the Claimant went to a hospital emergency room several times due to his symptoms. In the month before the surgery, the Claimant’s pain had increased and was accompanied by spasms into his left lower extremity, which the Surgeon described as clonus[5] and consistent with significant nerve irritation. In his pre-operative notes, the Surgeon stated that the Claimant had progressive radiculopathy[6]; dysesthesia[7] in the left lower extremity down to the calf and foot; a hyperactive ankle jerk on the left side; and degenerative changes on the L4-L5 and L5-S1 levels. Though he initiated the second-opinion process by recommending spinal surgery, the Surgeon operated before giving the Carrier 14 days to seek a second opinion.

On October 18, 2000, the Surgeon performed the Spinal Surgery, an anterior L4-L5 and L5-S1 discectomy and fusion with BAK cages, on the Claimant.

Other expert physicians who reviewed the Claimant’s records after the Spinal Surgery did not share the Surgeon’s conclusion that there had been an emergency. In fact, they did not believe that the Claimant needed the Spinal Surgery at all. Randall F. Dryer, M.D., F.A.C.S., stated that a true emergency would involve progressive loss of motor and sensory function or bowel and bladder function. He also noted that there was no documentation of neurological deficits. Dr. Dyer concluded that this was purely elective surgery that, even with progressive pain, should have gone through the second opinion process.

N.F. Tsourmas, M.D., and Clark Watts, M.D., reached similar conclusions. Both noted that it was medically impossible for lesions at the L4-L5 and L5-S1 levels to manifest themselves as clonus, as the Surgeon alleged. Dr. Watts explained that clonus is due to brain or spinal cord injury, not a nerve injury low on the back as this Claimant had. Nor did the Claimant’s other symptoms correspond to an injury at L4-L5 and L5-S1, which would have resulted in nerve deficits in the Claimant’s foot and the posterior and lateral portions of his leg. Watts also testified that an injury at L4-L5 and L5-S1 conceivably could have caused spasms in Claimant’s calf, but he had none there. Dr. Watts concluded that the Claimant had no evidence of severe or rapidly progressive neurological deficit. While Dr. Watts agreed that the Claimant needed some type of care to treat his work-related symptoms, he testified that the Spinal Surgery was medically unnecessary and that the majority of expert physicians would not have subjected the Claimant to that level of surgery.

The ALJ need not decide if the surgery was medically necessary, though there is very strong evidence that it was not. Instead, because the Carrier has the burden of proof, the ALJ need only determine whether there was an emergency to justify the bypassing of the Commission’s second-opinion process. The greater weight of the evidence supports the conclusion that there was not such an emergency. The evidence shows that the Claimant did not have a severe or rapidly progressing neurological deficit. Even the Surgeon only contended that the Claimant had a “potential” deficit and that he needed surgery on a “high priority,” not an emergency, basis.

The ALJ concludes the Claimant did not have a medical emergency requiring that he receive the Spinal Surgery. Accordingly, the ALJ concludes that the Carrier is not liable for the Disputed Services and the Provider’s request for reimbursement should be denied.

III. Findings of Fact

  1. On________, ___ (Claimant) sustained a work-related injury to his lower back as a result of his work activities (Compensable Injury).
  2. On the date of injury, the Claimant’s employer was_______________, and its workers’ compensation insurance carrier was Texas Workers Compensation Insurance Fund (Carrier).
  3. As a result of the compensable injury, the Claimant suffered pain in his back with radiation into his lower extremities.
  4. In September and early October of 2000, the Claimant’s pain increased and was accompanied by spasms in his left lower extremity and the Claimant went to a hospital emergency room several times due to his symptoms.
  5. On October 10, 2000, Robert V. Carr, M.D. (Surgeon), recommended spinal surgery for the Claimant to treat pain and other symptoms allegedly stemming from his compensable injury.
  6. As of October 18, 2000, the Claimant had degenerative changes on his L4-L5 and L5-S1 levels, dysesthesia in his left lower extremity down to his calf and foot, and a hyperactive ankle jerk on his left side but no muscle atrophy.
  7. On October 18, 2000, the Surgeon performed spinal surgery (Spinal Surgery), an anterior L4-L5 and L5-S1 discectomy and fusion with BAK cages, on the Claimant.
  8. Prior to the Spinal Surgery, the Carrier had not waived its right to obtain a second opinion regarding the Claimant’s alleged need for spinal surgery.
  9. Prior to the Spinal Surgery, the Claimant had no bowel or bladder dysfunction indicating emergency spinal surgery was necessary.
  10. Prior to the Spinal Surgery, the Claimant did not have a vertebral fracture or spinal cord compression indicating emergency spinal surgery was necessary.
  11. Prior to the Spinal Surgery, the Claimant did not have a severe or rapidly progressive neurological deficit indicating emergency spinal surgery was necessary.
  12. Prior to the Spinal Surgery, the Claimant did not have acute symptoms of sufficient severity indicating emergency spinal surgery was reasonably necessary to avoid placing the patient's health or bodily functions in serious jeopardy or serious dysfunction of any body organ or part.
  13. As part of and as a direct result of the Spinal Surgery, Covenant Medical Center Lakeside (Provider) furnished various hospital services (Disputed Services) to the Claimant from October 18 through 23, 2000.
  14. The Provider sought reimbursement of $45,042.10 from the Carrier for the Disputed Services.
  15. The Carrier denied the Provider’s request for reimbursement for the Disputed Services.
  16. The Provider filed a request for medical dispute resolution with the TWCC.
  17. The MRD found that the Claimant required emergency spinal surgery and ordered the Carrier to reimburse the Provider $33,654.64 for the Dispute Services.
  18. After the MRD order was issued, the Carrier asked for a contested-case hearing by a State Office of Administrative Hearings (SOAH) Administrative Law Judge (ALJ).
  19. Notice of a December 12, 2001, contested-case hearing concerning the dispute was mailed to the Carrier, the Provider, and the TWCC staff on May 2, 2001.
  20. The hearing was continued several times.
  21. Notice of a April 9, 2003 contested-case hearing concerning the dispute was mailed to the Carrier, the Provider, and the TWCC staff on January 8, 2003.
  22. On April 9, 2003, SOAH ALJ William G. Newchurch held a contested-case hearing concerning the dispute at the William P. Clements Office Building, Fourth Floor, 300 West 15th Street, Austin, Texas. The hearing concluded and the record closed on that same day.
  23. The Carrier appeared at the hearing through its attorney, Patricia Eads.
  24. The Provider appeared at the hearing through its patient account supervisor, Lynn Scott.
  25. The TWCC staff did not appear.

IV. Conclusions of Law

  1. 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 Ann. (Labor Code) §§ 402.073(b) and 413.031(k) (West 2002) and Tex. Gov’t Code Ann. (Gov’t Code) ch. 2003 (West 2002).
  2. Adequate and timely notice of the hearing was provided in accordance with Gov’t Code §§ 2001.051 and 2001.052.
  3. SOAH’s Chief ALJ has jurisdiction to adopt procedural rules for SOAH hearings, and a referring agency’s procedural rules govern a hearing only to the extent that SOAH’s rules adopt them by reference. Gov’t Code § 2003.050 (a) and (b).
  4. Under TWCC’s rules, the party seeking relief has the burden of proof. 28 Tex. Admin. Code (TAC) §148.21 (h) (2002).
  5. The Chief ALJ has not adopted TWCC’s burden-of-proof rule, and no statute requires the use of that rule.
  6. In determining the burden of proof, the referring agency’s documented policy is to be considered, but it must be modified to consider the parties’ access to and control over pertinent information and so that no party is required to prove a negative. 1 TAC § 155.41(b).
  7. Based on the above Findings of Fact, Conclusions of Law, and TWCC’s documented policy set out in its rules, the Carrier should have the burden of proof in this matter.
  8. An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Labor Code § 408.021 (a).
  9. On the dates that the Disputed Services were provided, the TWCC rules set out a spinal-surgery-second-opinion process, which provided:

. . . the carrier is liable in any of the following situations for the reasonable and necessary costs of the proposed type of spinal surgery and the medically necessary care related to the spinal surgery. The surgery must be related to the compensable injury and performed by a surgeon who was on the [TWCC] List [of approved surgeons] at the time . . . The carrier is liable in the following situations:

(A) medical emergencies;

(B) carrier waiver of second opinion;

(C) no carrier request within 14 days of acknowledgment date, for a second opinion;

(D) concurrence by both second opinion doctors;

(E) no timely appeal after two second opinions, only one of which is a concurrence;

(F) final and nonappealable commission order to pay.

28 Tex. Admin. Code (TAC) 133.206 (b)(1).

  1. Based on the above Findings of Fact, less than 14 days passed between the time the Surgeon recommended the Spinal Surgery and when it was performed, hence the Carrier did not, and was not given sufficient time to, seek a second opinion.
  2. Based on the above Findings of Fact, this case is the appeal of the Commission’s order directing the Carrier to pay for the Disputed Services.
  3. On the dates that the Disputed Services were provided, the spinal-surgery-second-opinion-process rule defined “medical emergency” as:

A diagnostically documented condition including but not limited to:

(A) unstable vertebral fracture of such critical nature that increased impairment may result without immediate surgical intervention;

(B) bowel or bladder dysfunction related to the spinal injury;

(C) severe or rapidly progressive neurological deficit; or

(D) motor or sensory findings of spinal cord compression.

28 TAC § 133.206 (a)(2).

On the dates that the Disputed Services were provided, the TWCC’s rules generally defined “a medical . . . emergency” as:

a medical emergency consists of the sudden onset of a medical condition manifesting itself by acute symptoms of sufficient severity, including severe pain, that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health and/or bodily functions in serious jeopardy, and/or serious dysfunction of any body organ or part. 28 TAC § 133.1(a) (7) (A).

  1. Based on the above Findings of Fact and Conclusions of Law, the Claimant did not have a medical emergency requiring that he receive the Spinal Surgery.
  2. Based on the above Findings of Fact and Conclusions of Law, the Carrier is not liable for the Disputed Services and the Provider’s request for reimbursement should be denied.

ORDER

IT IS ORDERED THAT the Provider’s request to be reimbursed for the Disputed Services is denied.

Signed April 14, 2003.

WILLIAM G. NEWCHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 28 Tex. Admin. Code (TAC) §133.206 (2000).
  2. 28 TAC §133.206 (b)(1).
  3. 28 TAC §133.206 (a)(2).
  4. 28 TAC § 133.1(a)(7)(A).
  5. A repetitive flexion across a particular joint.
  6. Compression of a nerve root due to an injury or tumor.
  7. Impairment of sensitivity especially to touch.
End of Document
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