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At a Glance:
Title:
453-01-2848-m5-etal
Date:
November 19, 2003
Status:
Retrospective Medical Necessity

453-01-2848-m5-etal

November 19, 2003

DECISION AND ORDER

DISPOSING OF CASE BY SUMMARY DISPOSITION

AND ORDER REMOVING CASES FROM CONSOLIDATED DOCKET

I. Introduction

Texas Mutual Insurance Company (Carrier), formerly The Texas Fund, filed motions for summary disposition in each of the cases referenced above. Carrier alleged that all material facts on which a prior decision between these two parties was based, Docket No. 453-01-2118.M5 (February 19, 2002), are the same in all the cases listed above, so it is entitled to summary disposition under the principles of res judicata and collateral estoppel. In addition, Carrier alleged that Texas Imaging and Diagnostic Center (Provider) expressly did not oppose the summary judgement motion in regard to Docket No. 453-01-2848.M5 (Consolidated).[1] Respondent did not dispute Petitioner’s assertion that the material facts regarding how monitoring service was provided was the same among all cases between these parties. Provider did not oppose the summary disposition motion as to Docket No. 453-01-2848.M5 (Consolidated), the lead case in this docket. Rather, Provider contended that the initial Decision and Order, Docket No. 453-01-2118.M5, was determined incorrectly on a point of law, i.e., interpretation and application of the Labor Code and Commission rules.

A. Motions Granted

Having considered the parties’ factual and legal arguments, the ALJ grants Carrier’s summary disposition motion as to all but two cases in both consolidated dockets. This Decision and Order disposes of all cases at issue in which Carrier raised the issue of inappropriate provision of services before the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission). Specifically, this Decision and Order resolves Docket Nos. 453-01-1530.M5, 453-01-1531.M5, 453-01-2848.M5,[2] and 453-01-2858.M5.

B. Motions Denied

Carrier’s motions for summary disposition as to Docket Nos. 453-01-3310.M4 and 453-01-1260.M5 are hereby denied. The cases are hereby severed from these consolidated dockets and will be set for hearing. The motion is denied as it is not based on an issue before SOAH. In those cases, Carrier failed to assert before the MRD that Provider’s services were not provided in accordance with applicable statutes or rules, the basis for the ruling in Docket No. 453-01-2118.M5. The sole issue in each of the two cases was whether the intra-operative monitoring was global to, i.e., included within, the surgery.[3] It is a well-established principle that parties to a TWCC dispute at SOAH are limited to those grounds on which the original claim was denied. Carrier’s appeals in Docket Nos. 453-01-3310.M4 and 453-01-1260.M5 will be scheduled for hearing at the earliest convenience of the parties to consider whether the monitoring was global to the surgery. For efficiency, these cases will be scheduled consecutively on the same hearing date. The parties are hereby ordered to submit, on or before December 12, 2003, three proposed hearing dates. Counsel should contact the ALJ’s clerk, Patricia Pena, at 512/475-1515, for dates on which the undersigned is already scheduled.

II. Discussion of Elements of Summary Disposition

In its motion, Carrier alleged that Provider’s means of conducting intra-operative monitoring in all the surgeries at issue was identical to those in Docket No. 453-01-2118.M5.[4] That is, a technician in the operating room who was not a licensed provider of electro-diagnostic health care services took nerve function reading, and transmitted printouts of those readings to a member of Provider’s staff, also not a licensed health care provider, in another city. The physician affiliated with Provider was not in the operating room or at the hospital site. Provider has never asserted that the services it provided in any of the other four cases in these consolidated dockets differed in any material way from the services described in detail in Docket No. 453-01-2118.M5.[5] In fact, Provider quotes testimony from that case, and asserts the parties would be expected to testify in the same way. (Provider’s Response, August 5, 2003, pp. 3-4). Absent a dispute as to facts, the ALJ will take as true those factual assertions made by Carrier as set forth in the evidence submitted with its motion.[6] (Carrier Motion for Summary Disposition, February 28, 2002).

Without a dispute as to material facts, Provider’s position on summary disposition amounts to a request for reconsideration of the decision in Docket No. 453-01-2118.M5. That case was fully litigated. Both parties presented extensive evidence and argument and were represented by counsel. The arguments raised by the parties here, in particular the legal standard asserted by Provider, were argued and considered in rendering the decision in Docket No. 453-01-2118.M5. See Decision and Order, pp. 2-3, 6-7. Provider has presented no new legal grounds that compel a reexamination of this issue.

The material facts in all the above-referenced cases being the same as when this matter was originally considered, the ALJ concludes that Carrier is entitled to summary disposition of the remaining cases in these consolidated dockets.

III. Findings of Fact

  1. The claimants in the cases identified below suffered compensable injury to the spine in the course of their employment, as follows:

Claimant/Docket No.

Date of Injury

V.B./453-01-1530.M5

R.C./453-01-1531.M5

V.C./453-01-2848.M5

A.L./453-01-2858.M5

  1. On the date of each’s injury, as identified in Finding of Fact No. 1, Texas Mutual Insurance Company (Petitioner), formerly The Texas Fund, was the responsible workers’ compensation insurer for each claimant’s employer.
  2. Surgery was performed for the spine injury suffered by each claimant, as follows:

Claimant/Docket No.

Date of Surgery

Surgery Location

Procedure

V.B./453-01-1530.M5

11/29/1999

Bayou City Medical, Houston, Texas

Decompression laminectomy, intertransverse fusion, installation of intervertebral prostheses, and segmental pedicle screw fixation

R.C./453-01-1531.M5

05/15/2000

Bayou City Medical, Houston, Texas

Anterior/posterior lumbar discectomy with fusion and instrumentation on L-4, L-5, and S-1

V.C./453-01-2848.M5

02/09/1999

Bayou City Medical, Houston, Texas

Anterior thoracic laminectomy with fusion and instrumentation at T-12 through L-2

A.L./453-01-2858.M5

03/20/2000

Bayou City Medical, Houston, Texas

Anterior cervical discectomy with fusion and instrumentation on C4-5

  1. For each surgery, Texas Imaging and Diagnostic Center (Provider) was engaged to provide intra-operative monitoring during the course of the surgery, at the direction or request of the physician performing the surgery.
  2. Intra-operative neurophysiology monitoring involves continuous or periodic sampling of a patient’s neurological activity during a surgical procedure. The purpose of the monitoring is to provide data to the surgeon regarding possible injury to the nervous system that may be occurring as a result of the surgical procedure so that the condition can be addressed immediately.
  3. Roger S. Blair, M.D., the neurologist who provides medical services to Provider in connection with its intra-operative monitoring, works from his office in Fort Worth.
  4. No member of Provider’s staff present at the surgery site was certified in neuro-monitoring or electromyography between February 9, 1999 and March 15, 2000, the period of time during which the surgeries listed in Finding of Fact No. 3 were performed.
  5. Provider’s staff at Bayou City Medical Center performed somatomsensory evoked potential (SSEP) monitoring of each claimant during his back surgery, transmitting paper printouts of each Claimant’s nerve-response readings to Provider’s staff in Fort Worth.
  6. Provider’s staff was not supervised by any licensed health care provider present at Bayou City Medical Center when it performed the SSEP monitoring. Dr. Blair was not present at Bayou City Medical Center during any of the surgeries listed in Finding of Fact No. 3.
  7. The means by which Provider rendered the medical services in the situations described in Findings of Fact No. 1-9 was identical to the means by which Provider rendered the same medical service in the case adjudicated as SOAH Docket No. 453-01-2118.M5.
  8. Carrier denied payment to Provider for the four sessions of intra-operative neurophysiology testing described in Findings of Fact No. 3-9 on the grounds that the service was not medically necessary and the monitoring lacked the on-site supervision required by terms of the Medical Fee Guideline (MFG) promulgated by the Texas Workers’ Compensation Commission (Commission).
  9. On the dates listed below, the Medical Review Division (MRD) of the Commission ordered Carrier to reimburse Provider for the provision of intra-operative monitoring services:

Claimant/Docket No.

Date of Decision

V.B./453-01-1530.M5

December 4, 2000

R.C./453-01-1531.M5

December 6, 2000

V.C./453-01-2848.M5

March 26, 2001

A.L./453-01-2858.M5

March 30, 2001

  1. Carrier filed timely requests for hearing before the State Office of Administrative Hearings (SOAH) to challenge each of the MRD Decisions referenced in Finding of Fact No. 12.
  2. The Commission issued notices of hearing that included the date, time, and location of the hearing and the applicable statutes under which the hearing would be conducted as follows:

    Claimant/Docket No.

    Date of Notice of Hearing

    V.B./453-01-1530.M5

    January 17, 2001

    R.C./453-01-1531.M5

    January 17, 2001

    V.C./453-01-2848.M5

    May 8, 2001

    A.L./453-01-2858.M5

    May 11, 2001

  3. Carrier timely filed motions for summary disposition in regard to each of the cases discussed in the Findings of Fact above, and offered facts in support of that motion. Provider did not dispute facts offered by Carrier as to the means by which it provided medical services.

VI. Conclusions of Law

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to Tex. Lab. Code Ann. § 413.031.
  2. The State Office of Administrative Hearings (SOAH) has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a Decision and Order, pursuant to Tex. Lab. Code Ann. § 413.031 and Tex. Gov’t Code Ann. ch. 2003, and the authority to resolve cases on summary disposition, pursuant to 1 Tex. Admin. Code § 155.57.
  3. All notices of hearing issued by the Commission conformed to the requirements of Tex. Gov’t CodeAnn. § 2001.052 in that they contained a statement of the time, place and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular section of the statutes and rules involved; and a short plain statement of the matters asserted.
  4. Provider is a provider of health care services within the meaning of Tex. Lab. Code Ann. § 401.011 (21) and (22). As such, Provider is subject to Commission rules governing the provision of health care services by its staff or persons used by it to provide its monitoring service, including the Medical Fee Guideline, 28 Tex. Admin. Code § 134.201.
  5. As there is no genuine issue as to any material fact in these cases, and the material facts in each of these cases and in SOAH Docket No. 453-01-2118.M5 are identical, Carrier is entitled to summary disposition under 1 Tex. Admin. Code §155.57.
  6. The intra-operative monitoring Provider performed in connection with spine surgery for four workers’ compensation claimants on four dates of service-February 9 and November 19, 1999, and March 20 and May 15, 2000-was not performed in accordance with the Medical Fee Guideline General Instructions, 28 Tex. Admin. Code §134.201(e)(1), which requires on-site supervision by a licensed provider when a non-licensed person is providing health care to workers’ compensation claimants.
  7. Under Tex. Lab. Code Ann. § 413.011et seq, a Carrier is required to reimburse health care providers only for those services provided for the benefit of workers’ compensation claimants that are performed in the manner set forth in the applicable portions of the Labor Code and Commission rules.

ORDER

IT IS HEREBY ORDERED, on the basis of the summary disposition rendered in these cases,that the Texas Mutual Insurance Company is not required to reimburse Texas Imaging and Diagnostic Center for intra-operative monitoring services provided on the dates of service of February 9, and November 19, 1999, and March 20 and May 15, 2000.

Signed November 19, 2003.

_______________________________________________ CASSANDRA J. CHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. The individual cases included in this consolidated docket are Docket Nos. 453-01-1530.M5, 453-01-1531.M5, 453-01-2848.M5, 453-01-2858.M5, 453-01-3310.M4, 453-01-1260.M4 [MRD Nos. M5-01-0285-01, M5-01-0292-01, M5-00-0353-01, M5-01-1118-01, M4-00-1146-01].
  2. As to Docket No. 453-01-2848.M5, Petitioner would be entitled to granting of its summary judgment motion solely on the basis that it was unopposed. Nevertheless, for purposes of this analysis, the ALJ treated Docket No. 453-01-2848.M5 as if it had been contested. Applying the same factors as evaluated in other cases with contested motions, the ALJ concluded Petitioner would be entitled to a summary disposition in this case also.
  3. The ALJ hereby takes official notices of the Medical Review Division (MRD) Decisions in the all cases in this consolidated docket. Each Decision appears in the SOAH case file with the petitioning party’s request for a hearing. The MRD Decision in Docket No. 453-01-1260.M4, issued on November 17, 2000, and the MRD Decision in Docket No. 453-01-3310.M5, issued on May 25, 2000, were both limited to the issue of whether intra-operative monitoring was global to, i.e. included within, the surgery.
  4. Provider’s appeal of the decision in Docket No. 453-01-2118.M5 was dismissed for failure to prosecute. Texas Imaging & Diagnostic Center v. Texas Workers= Compensation Commission and Texas Mutual Insurance Company, Cause No. GN-200878, 345th Judicial District Court, Travis County, Texas (March 4, 2003.) Thus there is no decision by a State Court of Texas contrary to the SOAH Decision and Order in Docket No. 453-01-2118.M5.
  5. The Provider did raise one factual matter, that of the appropriate fees. Under its theory that the MFG sets a price, not regulates practice, it would be entitled to submit evidence regarding the appropriateness of a fee that differed from the maximum allowable reimbursement (MAR). Response, p. 6. The record in Docket No. 451-01-2181.M5 does not include evidence in regard to fee levels.
  6. Most facts in this Decision and Order appear in the MRD Decisions, already officially noticed. Descriptions of the surgeries and their location were found at Texas Imaging and Diagnostic Center's Motion to Consolidate filed June 27, 2001, Exhibit D, Blair 0001-0085.
End of Document
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