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At a Glance:
January 14, 2002
Medical Fees


January 14, 2002


I. Summary

Brian O’Grady, M.D. (Petitioner), sought review of a decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) declining to order payment to him for spinal surgery that he had performed May 30, 2000 on _____ (Claimant). Dr. O’Grady performed the surgery on an emergency basis, that is, without seeking a second opinion regarding the need for the surgery. Liberty Mutual Fire Insurance Company (Carrier) denied payment; the MRD hearings officer also concluded that Petitioner had not documented emergency conditions, so upheld the Carrier’s denial of payment. Based on the evidence, the administrative law judge (ALJ) concludes that Dr. O’Grady met his burden of proof to show that emergency surgery was medically necessary to treat Claimant’s work-related injury.

The particular facts and reasoning in support of this decision are set forth below in the Discussion and Findings of Fact, and the legal conclusions derived from those facts appear in the Conclusions of Law.

II. Evidence and Discussion

The record in this case consisted of the certified record of the MRD proceeding, and Dr. O’Grady’s testimony.

Dr. O’Grady contended his treatment of Claimant was appropriate under the emergency exception to the rule requiring a concurring second opinion, and that he had fully documented the conditions constituting an emergency in documents the MRD and Carrier had reviewed. On the other hand, the Carrier and the Commission both asserted that Dr. O’Grady had not sufficiently documented an emergency condition. As a general rule, a second medical opinion supporting the medical necessity for a spinal surgery is a prerequisite to imposing liability on a workers’ compensation carrier to reimburse the surgeon. Tex. Labor Code Ann. § 408.206. However, Labor Code § 408.206 also provides an emergency exception. The rule defining what constitutes an emergency lists several specific indicators of an emergency, but also states the listed conditions are not exclusive. The emergency exceptions rule, 28 Tex. Admin. Code (TAC) § 33.205(a)(2), states as follows:

(a)Definitions. The following words and terms, when used in this subchapter, will have the following meanings, unless the context clearly indicates otherwise:

* * *

(2)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 of spinal cord compression.

Dr. O’Grady demonstrated that the Claimant showed signs of spinal cord compression based on adverse motor and sensory findings prior to the surgery, thus presenting a condition qualifying an emergency under Rule 133.205(a)(2). Dr. O’Grady also asserted that the intractable pain that the Claimant experienced as a result of the injury was itself sufficient to constitute a diagnostically documented condition which would also justify the need for emergency surgery under the terms of the rule. As noted, Rule 133.205(a)(2) permits a provider to establish, through evidence, that a claimant could present with conditions that would warrant emergency spinal surgery, other than ones on the list. The ALJ concludes that Dr. O’Grady also established that Claimant presented a case of intractable pain, the treatment of which through non-surgical means would present additional health risks.

III. Findings of Fact

  1. On ___________,_______ (Claimant) suffered a compensable injury at his job when he pulled a dolly up a ramp. He was 31 years old at the time of the injury.
  2. An MRI scan taken at a hospital emergency room on ___, showed the injury had caused a large disk herniation at Claimant’s C6 cervical vertebrae, compression of his left C7 nerve root and distortion of the left side of his spinal cord at that level.
  3. Dr. Julie Moy, M.D., was Claimant’s treating physician; Dr. Moy consulted with Dr. Brian O’Grady (Petitioner), a neurosurgeon, regarding Claimant’s treatment.
  4. Dr. O’Grady examined the Claimant in the hospital on ___-the day after the injury-and monitored his case throughout the weekend following the injury. On the following Tuesday, ___, Petitioner performed a cervical diskectomy at C6, nerve decompression, and an anterior cervical fusion.
  5. On ___, Claimant’s employer was covered by worker’s compensation insurance written by Liberty Mutual Fire Insurance Company (Carrier).
  6. Claimant experienced significant neck pain, numbness of his left arm and severe left arm pain from the root of his neck to his fingers at the time of the injury. He had numbness in his left arm and loss of 50 percent of the strength of his left tricep.
  7. By ___, when Petitioner examined him, the Claimant showed marked reflex spread on the right side of his body. Reflex spread is an abnormal startle-type response of a limb or body part to a stimulus; reflex spread is an indicator that there is an interruption in the flow of information from the brain through the spinal cord.
  8. By ___, Claimant’s left tricep was are flexive, that is, it exhibited no response to stimulus. Claimant show abnormalities in light touch and pinprick sensations involving his entire left hand.
  9. Conservative treatment administered by Dr. Moy included a selective nerve block performed on the date of injury, and installation of a TENS units. Narcotic painkillers were administered to Claimant during his original hospitalization on May 25 and 26, 2000. These conservative care measures were unsuccessful in relieving Claimant’s pain for any significant period of time, or to any significant degree.
  10. Claimant was permitted to return to his home during the Memorial Day weekend, with instructions to report any change in his condition to Petitioner. While at home between May 27 and May 29, 2000, Claimant reported to Petitioner on nine occasions that the oral pain medication, Vicodin, even when taken in quantities well above the prescribed amounts, had no effect and that his left arm pain continued to be severe. He reported increasing weakness in his left arm over the course of the weekend.
  11. Medication or sedation levels necessary to afford Claimant pain relief for an extended period of time would have increased Claimant’s risk of blood clots or stroke.
  12. In connection with his initial evaluation of Claimant, Dr. O’Grady made tentative arrangements at the hospital to conduct spinal surgery on the Tuesday following the Memorial Day weekend, May 27-29, 2000. Tuesday, May 30, 2000, was the first day following the extended holiday on which an operating room was available at the hospital where Dr. O’Grady practiced.
  13. Petitioner did not obtain a second opinion on the need for spinal surgery.
  14. The Carrier denied payment for the surgery listed in Finding of Fact No. 4 on the basis that Petitioner had failed to document that he met the conditions for an emergency surgery.
  15. Petitioner appealed the Carrier’s denial of benefits to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC). After reviewing the file, including Dr. O’Grady’s treatment notes, the MRD declined to order the Carrier to pay for the surgery on the basis Dr. O’Grady had not demonstrated an emergency condition. The MRD issued its order on April 9, 2001.
  16. On April 20, 2001, Petitioner filed a timely request for a hearing at the State Office of Administrative Hearings (SOAH) on the MRD decision.
  17. On May 18, 2001, the Commission issued a notice of hearing which included the date, time, and location of the hearing, and the applicable statutes under which the hearing would be conducted; the notice stated additional facts on the nature of the matters asserted would be issued within 10 days of the hearing. The Commission timely filed statements of matters asserted.
  18. SOAH Administrative Law Judge (ALJ) Cassandra Church convened a hearing on these issues on January 3, 2002, and the record closed that day.

IV. Conclusions of Law

  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code § 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. Labor Code § 413.031 and Tex. Gov’t Code ch. 2003.
  3. The notice of hearing issued by the Commission conformed to the requirements of Tex. Gov’t Code § 2001.052 in that it 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. Petitioner has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Tex. Labor Code § 413.031.
  5. Petitioner proved by a preponderance of the evidence that, at the time he performed spinal surgery, Claimant presented the condition of spinal cord compression based on adverse motor and sensory findings, within the meaning of 28 Tex. Admin Code (TAC) § 133.205(a)(2).
  6. Petitioner proved by a preponderance of the evidence that, at the time he performed spinal surgery, Claimant presented intractable pain that did not respond to conservative care which, under the facts of this case, constituted an additional diagnostically documented condition permitting emergency surgery, within the meaning of 28 Tex. Admin Code (TAC) § 133.205(a)(2).
  7. The surgery Petitioner performed on May 30, 2000 on Claimant was an appropriate emergency spinal surgery within the meaning of Tex. Labor Code Ann. § 408.206.
  8. The emergency spinal surgery was treatment reasonably required to relieve the effects of or promote recovery from a compensable injury suffered by Claimant, within the meaning of Tex. Labor Code §§ 408.021 and 401.011(19).
  9. Under Tex. Labor Code § 413.015, the Carrier is required to reimburse Dr. Brian O’Grady for the spinal surgery he performed on Claimant C.J. H. on May 30, 2000.


It is hereby ordered that the Liberty Mutual Fire Insurance Company reimburse Dr. Brian O’Grady the amount of $ 8,972.00 for the spinal surgery he performed for Claimant_______ on May 30, 2000.

Signed January 14, 2002.


Administrative Law Judge

End of Document