Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
August 14, 2002
Retrospective Medical Necessity


August 14, 2002


I. Summary

Texas Imaging & Diagnostic Center (Petitioner) sought review of a decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) denying it reimbursement for interoperative monitoring (IOM) services it performed on July 23, 1999, on behalf of E. E. (Claimant). The MRD concluded that the Petitioner had failed to establish that the services were performed in accord with the Medical Fee Guideline (MFG)[1] in that they were not performed under the direct, on-site supervision of a licensed health care provider. The MRD also ruled that Petitioner failed to document the need for somatosensory evoked potential testing (SSEP) and supplies it had billed separately. The Carrier had denied payment for all services and supplies on the basis all were medically unnecessary. In a decision issued May 29, 2001, the MRD declined to order Wausau Business Insurance Company (Carrier) to reimburse Petitioner the $2,083.00 in dispute.[2] Based on the evidence and applicable law, the Administrative Law Judge (Judge) concludes that the MRD improperly expanded the scope of the dispute beyond the original grounds of denial and that the Petitioner is entitled to reimbursement for the core IOM service. The hearing was held on June 4, 2002, and the record closed that day.

II.Factual Background

On________, Claimant injured her back while on the job. On July 23, 1999, Claimant underwent back surgery, specifically an anterior and posterior lumbar decompression at the L4-L5 and L5-S1 levels of her spine, with both fusion and instrumentation. (TWCC Exh. 1, P. 7). Dr. Robert S. Blair, M.D., explained that this procedure is referred to as a “360 degree fusion” because the surgeon performs procedures from both the front and back of the body. The patient’s body is turned during the course of the surgery. In this case, the entire procedure lasted about seven hours, with IOM throughout. There is apparently no dispute that a 360 degree fusion was the appropriate and compensable treatment for Claimant’s injury. In 1999, Dr. Blair was one of two physicians doing business as Neurology Associates of Fort Worth. As a partner of that practice group, Dr. Blair prepared a summary on the neurological aspects of the surgery. He is also a principal in the petitioning testing company, or a consultant to it. (TWCC Exh. 1, Pp. 8-9, 65 and 66).

During the surgery, Petitioner’s staff monitored Claimant’s nerve functions above and below the area of the surgery.[3] Such monitoring is performed in order to alert the surgeon to any nerve damage that the surgical procedures cause so the damage can be corrected immediately in order to “prevent neurological disasters before they happen,” as Dr. Blair put it. The treating physician, surgeon Dr. Bruce Hinkley, M.D., performed the operation at the Garland Community Hospital in Garland, Texas. In this case, the surgery was routine. (TWCC Exh. 1, Pp. 8-9). Dr. Hinkley had referred the Claimant to Petitioner’s facility. (TWCC Exh. 1, P. 7).

III. Discussion

The specific items at issue were the IOM (CPT Code 95920) for seven hours, SSEP (CPT Code 95925), and supplies (CPT Codes A4556 and A4213). In the explanation of benefits (EOB), the Carrier denied payment for each item listed above on the basis it was not medically necessary, using denial code “U.” After receiving this answer to its claim for payment, the Petitioner resubmitted the claim, supplying additional details about the purpose of the procedure and its administration. (TWCC Exh. 1, P. 63). The Carrier”s second EOB is not in the record; however, the only denial code referenced by the MRD is denial code “U.”[4] (TWCC Exh. 1, P. 3). Notwithstanding the Carrier’s position, the MRD used a basis other than medical necessity when it denied reimbursement. The MRD concluded that the IOM was performed in contravention of the treatment requirements of the MFG, in one of two ways; first, the testing was either subsumed within, or “global” to, the surgery if supervised by the surgeon, or, second, was conducted without the appropriate on-site supervision if Dr. Blair were to be considered the supervisor. The MRD also decided Petitioner had failed to document the medical need for the extra supplies and for SSEP testing.

The difficulty faced by the Carrier in this case is that the MRD determined the case on grounds other than those asserted by the Carrier in its initial denial of benefits. That is, in evaluating this case, the MRD improperly expanded the scope of the dispute. In numerous cases heard at SOAH, the judges have interpreted statutes and rules defining the limits and structure of an agency’s dispute resolution process as barring parties from expanding the scope of the dispute beyond the original reasons for denial raised by the Carrier in an EOB. See SOAH Docket No. 453-00-1740.M5 (October 20, 2000) and decisions cited therein.[5]

In evaluating the evidence in this case on the sole ground of medical necessity, the Judge concludes that the Petitioner met its burden of proof to show that the procedure was medically necessary. The Carrier submitted no evidence to the MRD on the issue of medical necessity; indeed, it submitted no response at all. At the SOAH hearing, the only credible medical evidence was the testimony of Dr. Blair, which supported the medical necessity for the monitoring in this lengthy procedure. The Carrier should reimburse the Petitioner $1,848 for performing IOM.[6]

However, the Petitioner failed to meet its burden of proof to show that the SSEP monitoring was medically necessary or that the supplies were related to the IOM procedure and, thus, medically necessary. Indeed, the record is virtually devoid of evidence from either party on these two items. The Judge concludes that the Carrier should not reimburse the Petitioner for SSEP monitoring (CPT Code 95925) or for separate supply charges. (CPT Codes A4556 and A4213).

IV. Findings of Fact

  1. On_________, (Claimant) injured her lower back while on the job. Treatment for that injury was compensable under the Tex. Labor Code § 413.015 (the Act).
  2. Wausau Business Insurance Company (Carrier) was the workers’compensation insurance carrier for Claimant’s employer on June 10, 1998.
  3. On July 23, 1999, Dr. Bruce Hinkley, M.D., performed surgery on Claimant at the Garland Community Hospital in Garland, Texas, to treat Claimant’s compensable spine injury. Claimant underwent an anterior and posterior lumbar decompression at the L4-L5 and L5-S1 levels of her spine, with both fusion and instrumentation, a procedure termed a “360 degree fusion.”
  4. In support of that operation, Dr. Hinkley, the treating physician, ordered that intraoperative neurophysiology monitoring (IOM) be conducted during the seven-hour long procedure. Dr. Hinkley referred Claimant to Texas Imaging and Diagnostic Center (Petitioner) to perform the IOM.
  5. IOM 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. It is health care compensable under the Act.
  6. Petitioner conducted IOM on Claimant throughout her multi-hour surgery on July 23, 1999.
  7. The Carrier denied Petitioner’s claim for reimbursement on the grounds that the IOM, somatosensory evoked potential (SSEP) testing and charges for supplies were not medically necessary.
  8. IOM was medically necessary to treat Claimant’s compensable injury.
  9. SSEP testing, and additional needles and electrodes for which Petitioner sought reimbursement, were not medically necessary to treat Claimant’s compensable injury.
  10. On December 28, 1999, the Carrier denied payment to Petitioner for the IOM testing described in Findings of Fact Nos. 4-6, and the related SSEP testing and supplies, on the grounds that the service and supplies were not medically necessary.
  11. Petitioner resubmitted the claim, providing additional details of the monitoring, including information about the referral from the treating doctor, Dr. Hinkley. The Carrier again denied the claim on the grounds of medical necessity.
  12. On April 13, 2000, Petitioner timely appealed the Carrier’s denial of benefits to the Medical Review Division (MRD) of TWCC.
  13. On May 29, 2001, the MRD concluded that Petitioner failed to provide IOM in the manner required by the General Instructions of the Medical Fee Guideline, 28 Tex. Admin. Code §134.20, in regard to direct, on-site supervision of non-licensed health care providers, so declined to order reimbursement.
  14. In its May 29, 2001 decision, the MRD concluded that Petitioner had not demonstrated a medical need for the SSEP testing and the supplies, electrodes and needles, separate from the main IOM session, so denied reimbursement.
  15. On June 18, 2001, Petitioner filed a timely request for a hearing at the State Office of Administrative Hearings (SOAH) to reconsider the MRD decision.
  16. On July 16, 2001, the Commission issued a notice of hearing that included the date, time, and location of the hearing and the applicable statutes under which the hearing would be conducted.
  17. SOAH Administrative Law Judge Cassandra Church convened a hearing on these issues on June 4, 2002, and closed the record that day.

V. 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. 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. The scope of the hearing is limited to the medical necessity for the disputed treatments and supplies.
  5. Petitioner is a provider of health care services within the meaning of Tex. Labor Code § 401.011 (21) and (22).
  6. Petitioner proved by a preponderance of the evidence that the intraoperative monitoring it performed in connection with the July 23, 1999, spine surgery on Claimant was medically necessary to treat her compensable injury, under the terms of Tex. Labor Code § 413.015.
  7. Petitioner failed to meet its burden of proof to show that the SSEP testing, and needles and electrodes, were medically necessary within the meaning of Tex. Labor Code § 413.015.


IT IS HEREBY ORDERED that Wausau Business Insurance Company reimburse Petitioner $1,848.00 for intraoperative monitoring services rendered by Petitioner on July 23, 1999, on behalf of Claimant E.E.

Signed August 14, 2002.


Administrative Law Judge

  1. 28 Tex. Admin. Code (TAC) §134.201 (Eff. date April 1, 1996).
  2. The amount in controversy discussed in the MRD Decision is $3,882.00. However, at the hearing before SOAH, the parties agreed correct reimbursement amount for the IOM was $1,848.00, for a claim total of $2,083.00. The SSEP was $175.00, and the total supplies were $60.00. In addition, the correct date of service is July 23, 1999.
  3. To perform IOM, Petitioner assigned a technician, Mike Moya, to the operating room. Mr. Moya attached the electrodes to the patient, then monitored the Claimant’s nerve signals on machinery located in the operating room. At intervals, Mr. Moya transmitted a photocopy of nerve signal readings to Dr. Blair at his offices in Fort Worth, Texas. The facsimile image of the readout was in this case transmitted via the Internet, although it was not a continuous, real-time data stream. In the case of any abnormal reading of concern, or loss of the nerve signals, Mr. Moya was instructed to first notify the surgeon, then to contact Dr. Blair to try to troubleshoot the source of the problem, i.e., whether technical or due to surgical activity. Dr. Blair and Dr. Hinkley had provisions for direct communication by telephone, had it been required. Dr. Blair also said that during the course of a surgery, the doctor operating may periodically request a verbal update on the patient’s nerve activity from the IOM technician. Dr. Hinkley did not perform the IOM, nor did he supervise Mr. Moya. (TWCC Exh. 1, P. 7). Mr. Moya was not, on the date of the Claimant’s surgery, a licensed health care practitioner, within the meaning of that term in the Workers’ Compensation Act. Tex. Labor Code Ann. § 401.011(21) (The Act).
  4. The EOB form used by the Carrier in this case was labeled “Alternate TWCC-62 4/92,” on which the “U” code was defined as meaning “unnecessary medical treatment or service.” The version of the TWCC-62 promulgated by the Commission in July 2000 expanded the “U” code definition as follows:
  5. Used when the IC (insurance carrier) is denying payment because the IC deems the t/s (treatment and/ or service) to be medically unreasonable and/or unnecessary, and the IC is NOT basing that judgment on a peer review.

  6. This decision references a number of sections of the Texas Workers’ Compensation Act and Commission rules which outline the boundaries of the dispute resolution process which leads up to the contested case at SOAH, principally §§ 408.027(d) and 413.03 of the Act, and 28 Tex. Admin Code §§ 133.300 through 133.30.
  7. This decision should not be taken to opine on the issue of whether the treatment was conducted under the agency’s guidelines for treatment, as that issue was not presented in this case. Compare SOAH Docket No. 453-01-2118.M5 (February 19, 2002) in which, under similar facts regarding provision of the monitoring, payment was denied.
End of Document