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January 11, 2002
Medical Fees


January 11, 2002


This case is an appeal by St. Paul Fire and Marine Insurance Company (“Petitioner”) from findings and decisions of the Texas Workers’ Compensation Commission’s Medical Review Division (“MRD”) in a medical payment dispute. The MRD found that Petitioner was required to reimburse Respondent Alan E. Heilman, M.D. (“Dr. Heilman”), for spinal surgery performed on _________ (“Claimant”), even though Dr. Heilman had not obtained a second opinion upon the surgery prior to performing it.

This decision affirms the MRD’s decision, finding that Dr. Heilman was justified in performing surgery on an emergency basis and that the insurer should reimburse him for medical services related to that surgery.


The Texas Workers’ Compensation Commission (“the Commission”) has jurisdiction to consider appeals from decisions of its Medical Review Division pursuant to § 413.031 of the Texas Workers' Compensation Act (“the Act”), TEX. LABOR CODE ANN. ch. 401 et seq. 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 § 413.031(d) of the Act and TEX. GOV'T CODE ANN. ch. 2003.


The hearing in this docket was convened on December 13, 2001, at SOAH facilities in the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas. Administrative Law Judge (“ALJ”) Kathleen Sanford presided over the hearing. The Commission staff, as Respondent, was represented by Timothy Riley, Staff Attorney. Respondent Dr. Heilman represented himself and appeared via telephone. Petitioner was represented by H. Douglas Pruett, Attorney. After presentation of evidence and argument, the hearing was adjourned on December 13, 2001; parties filed post-hearing briefs on January 3 and 9, 2002; the record closed on January 9, 2002.

Under Commission Rule 148.21(h), Petitioner bears the burden of producing evidence and the burden of proof by a preponderance of the evidence on the question of whether reimbursement should be denied.

The issue in this case is whether a medical emergency existed such that Dr. Heilman was justified in proceeding with spinal surgery upon Claimant without securing a second opinion, as generally required by 28 TEX. ADMINISTRATIVE CODE (“TAC”) § 133.206.

The Claimant underwent spinal surgery on April 12, 2000, for which surgery Dr. Heilman received authorization through the TWCC Spinal Surgery Second Opinion process. On June 6, 2001, Claimant had a follow-up visit with Dr. Heilman, at which time Dr. Heilman discovered that the plates and screws inserted in the April 12 surgery had come loose. Dr. Heilman concluded that an emergency situation existed and surgery was required.

Dr. Heilman performed the follow-up surgery June 13, 2000 after obtaining the services of Dr. Patrick Reardon, a cardiothoracic surgeon, but without pre-authorization. Dr. Heilman then sought reimbursement for the surgery from Petitioner.

Petitioner denied reimbursement on the basis that no emergency existed and Dr. Heilman had failed to pursue properly the statutory second-opinion process for spinal surgeries, thus violating 28 TAC § 133.206. Dr. Heilman sought a medical dispute resolution through the Commission. On April 6, 2001, the MRD issued its order finding that a medical emergency existed and ordered Petitioner to reimburse Dr. Heilman in the amount of $20,429.50 plus all accrued interest due at the time of payment. That amount was corrected at hearing resulting in total approved costs of $24,024.50.

Petitioner then effected a timely appeal of MRD’s decision to SOAH.


A. Petitioner

Petitioner contends that the disputed surgery was not genuinely prompted by an emergency because Dr. Heilman waited an entire week after diagnosing the problem before performing the surgery. Otherwise, Petitioner’s witness, Thomas Padgett, M.D., testified at hearing that the patient’s condition, as reported by Dr. Heilman, certainly warranted emergency relief. Petitioner denied payment because the surgery was not approved through the TWCC Spinal Surgery Second Opinion process, and there did not appear to be an emergency, “as the problem was discovered on office visit of 06/06/2000, and the surgery was done on 06/13/2000, almost 1 week later.”[1] In addition, the denial letter stated that the bills for this surgery should be denied because the initial Second Opinion letter would not cover the second surgery.

At hearing, Dr. Padgett testified that if there was esophageal pressure, then there would be an emergency. Also, if there was 100% graft displacement, as shown on Dr. Heilman’s medical report, then such displacement implies esophageal pressure, and surgery would be required. The only dispute Dr. Padgett found with the procedure was the delay of a week before performing surgery. Moreover, Dr. Padgett stated that in his opinion there was no need for a second opinion; such would be a “waste of time;” and he would have performed the surgery on an emergency basis.

Petitioner argued at hearing that the medical report indicated Dr. Heilman told _______ he could take a vacation. Specifically, the report stated:

His wife is planning a cross-country trip in an automobile to Arizona next week, and I have told him that I absolutely would not do that. He probably could fly in an airplane, but he needs to stay out of cars until we can get this set up and fixed.[2]

Petitioner interprets this notation to mean that an emergency must not have existed if Dr. Heilman was advising his patient he could take a vacation.

B. Respondents

According to his clinical records, Dr. Heilman found, on June 6, 2000, from x-rays taken of _____________, that the initial graft was 100% displaced distally. The patient had torn out five screws.[3] According to the medical report, Dr. Heilman noted that “this is the first graft that I have seen do this in my practice in ten years.”[4] At hearing, Dr. Heilman testified that he was concerned that the patient’s esophagus would be torn by the dislodged plate. Other testimony from Dr. Padgett, on cross-examination by Dr. Heilman, revealed that such a condition would cause mortality at least 50% of the time.

Dr. Heilman required a cardiothoracic surgeon to assist, calling Dr. Patrick Reardon. Dr. Heilman decided it was necessary to wait until Dr. Reardon was available to assist in the surgery, and was able to schedule such surgery on June 13, 2000.

Dr. Heilman testified at hearing that he did not advise his patient that he could take a vacation. To the contrary, Dr. Heilman stated he told _________ he should not go on the trip, that he needed surgery.

The Commission staff concurred with Dr. Heilman’s position, finding that the preoperative diagnosis consisted of graft displacement and dislodgement of the anterior plate and screws, which were causing esophageal compression. The Commission found this to constitute a medical emergency warranting reimbursement of medical costs.[5]


Section 408.026(a) of the Act provides as follows:

(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; or

(3) the commission determines that extenuating circumstances exist and order payment for surgery.

Implementing this statutory second-opinion process, the Commission’s rule at 28 TAC §133.206(a)(2) contains the following definition of a medical emergency:

Medical emergency - 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 or spinal cord compression.

The general definition of emergency states at Rule 133.1(a)(7):

(7) Emergency - Either a medical or mental health emergency as described below:

(A) 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.


A. Emergency/Second Opinion

While neither the law nor rules provides a clear the basis for concluding that a medical emergency existed in this case, the administrative law judge (ALJ) finds that Rule 133.206(a)(2) does not exclude other conditions that might constitute a medical emergency. Moreover, according to the preamble to the adopted Rule 133.206, the phrase “including but not limited to” allows doctors to substantiate any emergency situation whether or not the specific condition is stated in the rule.[6] The record in this case, in fact, is undisputed that where pressure on the esophagus exists, as indicated in this case, then a medical emergency does exist which warrants surgery.

The ALJ finds that Dr. Heilman has sufficiently demonstrated conditions that warranted emergency intervention in _________ case. Dr. Heilman noted the previously inserted graft was 100% displaced, with the screws torn out. Dr. Heilman was concerned that the bone graft and screw hole he had lodged at C7 was basically fractured or loose. At hearing, he testified that the plate was so close to the esophagus that a tear could occur. He also testified that waiting a week to perform the surgery (1) was appropriate because the patient’s condition was stable and (2) was necessary in order to have the services of a surgical specialist. However, according to the testimony of Dr. Heilman at hearing, waiting any longer, even two weeks, would have been too long.

The evidence is uncontroverted that a medical condition such as that presented by the Claimant constitutes a medical emergency. Even Petitioner’s witness was very clear about this. The ALJ considers the timing of the surgery to be a judgment call based on the physician’s experience and review of the patient’s medical condition. Further, argument and evidence concerning the wife’s vacation plans do not persuade the ALJ that Dr. Heilman advised __________ he could take a vacation. In fact, the evidence adduced at hearing leads to the opposite conclusion.

The evidence in this case supports the propriety of bypassing the second-opinion process, even if a second opinion were required, which it was not, as the facts satisfy the pertinent regulatory definition of an emergency.

Previous rulings on this issue advise that the statute and rules requiring second opinions for spinal surgery “are intended to prevent unnecessary or ill-advised surgery, not to compel physicians to put off surgical procedures until the last possible moment, potentially transforming a delicate situation into a desperate one.”[7] In this case, Dr. Heilman was responsible for a patient whose condition was potentially life-threatening. While Drs. Padgett and Heilman disagree as to the length of time it would be appropriate to wait before surgery, Petitioner has not met its burden to prove that a week, in this particular situation, was too long between diagnosis and surgery. To the contrary, the patient’s condition here warranted surgery immediately, according to Dr. Padgett, and not as long as two weeks, according to Dr. Heilman. In either case, an emergency existed; the timing of the treatment must be dictated by the judgment of the attending physician.[8]

Accordingly, Dr. Heilman was justified in concluding that __________ condition reflected an emergency under § 408.026(a) of the Act; consequently, a second preauthorization under Rule 133.206 was not required.

B. Jurisdiction

Petitioner raised another argument against payment. Petitioner contends Dr. Heilman may not assert before SOAH the argument that Commission Rule 133.206 does not apply in this case because when the MRD applied the emergency exception it implicitly decided against his argument; therefore, according to Petitioner, Dr. Heilman was required to appeal that implicit adverse finding with respect to the Rule 133.206 argument.

The second surgery issue is based on the assumption that a second “re-do” surgery required within a period of time after the first surgery falls under the original pre-authorization, obviating the need for a second pre-authorization. In this case, Staff points out that Dr. Heilman’s office was informed by TWCC’s Spinal Surgery Department that pre-authorization was not needed based on the authorization obtained for the initial surgery.[9] Petitioner contends that because Co-respondent did not raise the issue before the MRD he is, in essence, estopped from doing so here. The ALJ finds, to the contrary, that the Act imposes no such requirement on the health care provider. Under a prior decision before SOAH, the ALJ determined that to require the health care provider to assert every potential basis for his claim, and further require the MRD to rule on every potential basis for a claim in order to make the particular issue appealable, was not required by the Act or public policy. There the ALJ concluded that the Act does not impose such a requirement, and if it did, SOAH would be barred from resolving the dispute on any basis not expressly ruled upon by the MRD.[10]

Under Section 413.031(d), petitioner is entitled to a hearing before SOAH under Subchapter 2001 of the Government Code, the Administrative Procedures Act. In such a hearing, parties are entitled to respond and to present evidence and argument on each issue involved in the case.[11] The Government Code does not limit the issues to those raised before the particular Commission. Under Section 413.031(d) of the Act, a party to a medical dispute that remains unresolved after a review of the medical service is entitled to a hearing. Consequently, SOAH’s jurisdiction applies to unresolved medical disputes. The general dispute is whether Dr. Heilman is entitled to payment for the spinal surgery. Included in that general dispute are the procedural issues concerning second surgeries and preauthorization, and the factual dispute surrounding the emergency nature of the case.

Based on all of the above reasoning, Petitioner’s objection to consideration of this issue is overruled. However, because the decision in this case turns on whether an emergency existed, and having found that one did exist in this case, the ALJ finds it is not necessary to further address the second opinion/pre-authorization issue.


The ALJ finds that the surgery to remove the graft from severe esophageal compression and repair the patient’s spinal condition, performed by Drs. Heilman and Reardon on __________, constituted health care reasonably necessary to ________ treatment, initiated in circumstances constituting a medical emergency under § 408.026(a) of the Act. The insurer therefore should be required to reimburse Dr. Heilman $20,024.50 for these medical services.


  1. On ___________, Claimant ___________ suffered a work-related injury. He presented some cervical spondylosis, which was treated with surgery in August 1999. Later, while getting into the back of a pick-up truck, _________ slipped and fell backwards to the ground resulting in severe pain.
  2. Respondent Alan Heilman, M.D. examined __________ on December 9, 1999, finding advanced spondylosis at the 5-6 and 6-7 level and a loss of epidural space with a large disk herniation causing cord displacement at the 3-4, 4-5, and 5-6 levels. On April 12, 2000, Dr. Heilman performed spinal surgery on ___________ approved by the TWCC Spinal Surgery Second Opinion process. Dr. Robert Cech, a neuro-surgeon, assisted in the surgery.
  3. At a follow-up visit on June 6, 2000, x-rays revealed that the graft done on April 12, 2000 had become 100% displaced distally, with five anterior cervical screws torn out. Claimant had failed to wear the prescribed brace, and multiple head movements caused fracture of C7 and dislodgement of the graft and screws.
  4. Based upon the examination of June 6, 2000, Dr. Heilman concluded that a medical emergency existed and scheduled _________ with his consent, for spinal surgery to remove the graft from compressing the esophagus, remove the anterior plate and fibular strut graft, re-do vertebrectomy and extend fusion down to T1, removing the disc at C7-T1, and other measures to repair the spine. Dr. Heilman was assisted in surgery by Patrick Reardon, M.D., a cardiothoracic surgeon.
  5. __________ position was stable on June 6, 2000; his condition was not life-threatening at that time. However, the anterior plate was completely displacing the patient’s esophagus; it was a matter of time before the plate might erode through it. Taking off the plate could injure the esophagus; therefore, it was appropriate to obtain the services of a thoracic surgeon to help ensure that surgery would not result in a medical catastrophe; i.e. tearing of the esophagus.
  6. Dr. Heilman obtained the services of Dr. Reardon and performed the surgery on June 13, 2000, when Dr. Reardon was available. Waiting one week from time of diagnosis to time of surgery was reasonable given the patient’s relatively stable condition and the necessity of securing the services of a thoracic surgeon.
  7. Dr. Heilman did not submit a form TWCC-63 request for approval of spinal surgery to the Commission prior to the surgery of June 13, 2000.
  8. After Dr. Heilman billed Petitioner for medical costs related to the surgery of June 13, 2000, Petitioner denied reimbursement.
  9. Dr. Heilman made a timely request for dispute-resolution review by the Commission’s Medical Review Division (“MRD”), pursuant to § 413.031 of the Act.
  10. The MRD found that a medical emergency existed and ordered Petitioner to reimburse Respondent Dr. Heilman $20,429.50 for medical services (in MRD Docket No. M4-01-1035-01).That amount was corrected for error at hearing resulting in a downward adjustment to $20,024.50.11. Petitioner made a timely request for a hearing with the State Office of Administrative Hearings, seeking review and reversal of the MRD decision noted in Finding of Fact No. 11.
  11. The Commission mailed notice of the hearing's initial setting to the parties at their addresses on May 11, 2001.
  12. A hearing in this matter was convened on December 13, 2001, at the Stephen F. Austin Building, 1700 North Congress Avenue, Austin, Texas, before Kathleen Sanford, an Administrative Law Judge with the State Office of Administrative Hearings. All parties were represented.


  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to § 413.031 of the Act.
  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 and the Commission’s rules, 28 TAC § 133.305(g) and §§ 148.001-148.028.
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
  5. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC §148.21(h).
  6. Based upon Findings of Fact Nos. 1 through 6, a medical emergency, as defined by 28 TAC § 133.206(a)(2), existed in June 2000 with respect to ___________ spinal condition.
  7. Based upon Conclusion of Law No. 6, Petitioner remained liable, pursuant to §408.026(a) of the Act, for reimbursement of the medical costs of the spinal surgery noted in Finding of Fact No. 10, despite the fact that Dr. Heilman did not obtain a second opinion prior to performing the surgery.
  8. Based upon the foregoing, the surgical care provided to __________ by Dr. Heilman (with the assistance of Dr. Reardon) represents health care medically necessary under ' 408.021 of the Act.
  9. Based upon the foregoing findings of fact and conclusions of law, Petitioner, St. Paul Fire and Marine Insurance Company, should be required to reimburse Dr. Heilman in the amount of $20,024.50 as noted in Finding of Fact No. 10.


IT IS THEREFORE, ORDERED that Petitioner St. Paul Fire and Marine Insurance Company be required to reimburse Alan E. Heilman, M.D., $20,024.50 plus interest for Dr. Heilman’s medical services in the spinal surgery performed upon Claimant _________ on June 13, 2000, payment to be made within 20 days from the date of this order.

Signed this 11th day of January 2002.


Administrative Law Judge

  1. Hearing Ex. 1 at 00052, letter from Petitioner to TWCC dated March 26, 2001. Staff entered into evidence, as Exhibit 1, the MRD’s Findings and Decision, with the accompanying documentary record, including materials offered by the Petitioners.
  2. Id. at 00043.
  3. Id. at 00043.
  4. WC Ex. 1 at 0043.
  5. See Ex. 1 pages 3 through 11.
  6. Preamble to 28 TAC § 133.206, 19 Texas Register 6427 (Nov. 1, 1994).
  7. See SOAH Docket No. 453-97-0779.M4 at 6 (Sept. 30, 1997 ALJ Rogan) interpreting Rule 133.206, which provides for a prospective review of recommendation for spinal surgery.
  8. See SOAH Docket No. 453-96-0028.M2 (April 29, 2996, ALJ Zukauckas) (fourteen day delay did not render surgery a non-emergency); SOAH Docket No. 453-99-1436.M5 (Dec. 8, 2000, ALJ Rusch) (seven day delay did not render surgery a non-emergency and spinal surgery need not occur “immediately” to support an assertion that an emergency existed).
  9. See Ex. 1 at 19.
  10. SOAH Docket No. 453-98-1398.M4 at 8 (Dec. 18, 1998, ALJ Burns) (Order Denying Motion for Summary Disposition).
  11. TEX. GOV’T. CODE § 2001.051.
End of Document