DECISION AND ORDER
This case involves a dispute over whether reimbursement is appropriate for hospital services in connection with spinal surgery provided to E. B., Deceased (Claimant). Claimant underwent spinal surgery at the facilities of Doctors Hospital-Tidwell (Provider). Provider billed National American Insurance Company (Carrier) for the hospital services. Carrier denied payment. Provider asserts it is entitled to reimbursement for the hospital services in connection with spinal surgery. The amount in controversy is $95,107.40.
The Administrative Law Judge (ALJ) concludes the Provider is entitled to reimbursement in the amount of $95,107.40 for services rendered in connection with the spinal surgery.
Claimant E. B. sustained a compensable back injury on (date of injury) In 1999, Claimant's treating doctor, Eric Scheffey, M.D., recommended Claimant undergo spinal surgery. Pursuant to the applicable rules at the time, Dr. Scheffey submitted form TWCC-63 to the Texas Workers= Compensation Commission (the Commission). A TWCC-63 is used by a treating doctor to inform the Commission that the treating doctor recommends spinal surgery for a claimant. The Commission then sent two identical lists of doctors to Claimant's treating doctor and Carrier so that each party could chose one doctor from each list to examine Claimant. Two doctors from the Commission's list, James Graham, M.D. and Michael Heggenes, M. D., were chosen to render second opinions regarding Claimant's spinal surgery and forward their opinion to the Commission. Initially, neither doctor concurred with Dr. Scheffey's recommendation. Dr. Scheffey's recommendation for spinal surgery was subsequently withdrawn.
In September 2000, Claimant was again examined by Doctors Graham and Heggenes. This time, the Commission received concurrences that Claimant was suitable to undergo spinal surgery. On October 18, 2000, the Commission sent out a letter indicating both second opinion doctors had agreed with Dr. Scheffey's opinion that Claimant required spinal surgery. On October 20, 2000, Carrier requested a contested case hearing (CCH) with the Commission to dispute the Commission's approval of spinal surgery. The request did not indicate any specific grounds for disputing the Commission's approval for spinal surgery. A CCH was not conducted based on this request. On October 24, 2000, Floyd Hardimon, D.O., performed spinal surgery on Claimant at the Provider's facility.
B. Applicable Law
The Texas Labor Code contains the Texas Workers= Compensation Act (the AAct) and provides the relevant statutory requirements regarding compensable treatment for workers= compensation claims. In particular, Tex. Lab. Code Ann. ' 408.021 provides in pertinent part:
(a) 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. The employee is specifically entitled to health care that:
- cures or relieves the effects naturally resulting from the compensable injury;
- promotes recovery; or
- enhances the ability of the employee to return to or retain employment.
* * *
The Texas Labor Code additionally contains statutory language addressing when the carrier is liable for spinal surgery as part of the second opnion process. In particular, Tex. Lab. Code Ann. ' 133.206 provides in pertinent part:
(b) Carrier liability for Spinal Surgery Costs.
(1) Subject to the provisions of paragraph (4) of this subsection, 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 List at the time the TWCC-63 was filed with the commission by the treating doctor or the surgeon. 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.
(2) The medically necessary care related to the spinal surgery generally includes the services of the surgeons and ancillary providers for the hospital admission, and the hospital services.
(3) If a carrier becomes liable for spinal surgery pursuant to the provisions of this section, disputes regarding the proposed and concurred upon type of spinal surgery shall be limited to a dispute as to the reasonableness of the fees charged. A carrier may challenge whether medical care related to the spinal surgery is medically necessary. A carrier's bill review for medical necessity must be performed in accordance with any applicable rules and regulations regarding utilization review. In dispute resolution proceedings regarding medical necessity, carriers are required to provide documentation indicating compliance with applicable rules and regulations regarding utilization review. A carrier shall not unreasonably deny benefits which are medically necessary. The division may recommend administrative violation proceedings when a carrier unreasonably denies benefits.
Carrier alleges it should not be required to reimburse Provider because the second opinion process was not complete. In support of this argument, Carrier asserts it was entitled to a CCH to dispute the second opinions forwarded to the Commission by the second opinion doctors. Carrier relies on the provisions of Tex. Lab. Code Ann. ' 133.206 for its assertion.
The spinal surgery second opinion process begins when a claimant's treating doctor submits a TWCC-63 to the Commission. The carrier then has the opportunity to request the claimant receive a second opnion. The Commission sends out a list of doctors to the carrier and the treating doctor. Each party chooses one doctor to examine the claimant. These doctors are commonly referred to as second opinion doctors. Each second opinion doctor forwards his opinion to the Commission. The Commission then notifies the treating doctor of the findings of the second opinion doctors.
If both second opinion doctors concur with the claimant's treating doctor, spinal surgery at the expense of the carrier is authorized. If both second opinion doctors disagree with the treating doctor, the carrier is not liable for payment of the surgery unless the Commission holds a CCH and orders the carrier to pay for the spinal surgery. If one second opinion doctor concurs and one does not, the carrier is liable for payment but is entitled to request a hearing before the Commission to determine if the weight of the medical evidence calls for surgery.
Both doctors concurred with the treating doctor. A letter from the Commission dated October 18, 2000, clearly reads, ABoth second opinion doctors agreed with your doctor that you need spinal surgery.
The opinion testimony of Carrier's witness indicated he did not feel the material submitted by the second opinion doctors met the requirements of a valid concurrence. Provider asserts the issue of whether the Commission received valid concurrences is not a matter for argument here. Even if this matter were properly presented before this ALJ, there is still no evidence in the record indicating the concurrences were not valid.
Provider points to a letter generated by the Commission reflecting that both second opinion doctors agreed with Dr. Scheffey before Claimant underwent spinal surgery. Under Tex. Lab. Code Ann. ' 133.206(b)(1)(D), Carrier is liable for the cost of the spinal surgery if the Commission receives concurrences by both second opinion doctors. The only evidence presented by Carrier to contradict Provider's position was the opinion testimony of Carrier's witness. The weight of the evidence presented before this ALJ is on the side of the Provider. Since Carrier has the burden of proof in this matter, it loses on this point.
Pursuant to Tex. Lab. Code Ann. ' 133.206(b)(3), once a carrier becomes liable for a spinal surgery, it may dispute only the reasonableness of the fees or the medical necessity of services related to the spinal surgery. Based on the second opinion concurrences by Drs. Graham and Heggenes, no avenue for challenging the necessity of the surgery remained.
The Carrier could have argued the reasonableness of the fees associated with the surgery and/or the necessity of subsequent medical care, but it did not raise these issues at the appropriate time-prior to consideration of the dispute by the Medical Review Division.
Because the evidence reflects both second opinion doctors concurred with the Claimant's treating doctor, the second opinion process was complete, any further challenges are precluded, and Carrier should reimburse Provider for the spinal surgery performed on Claimant.
FINDINGS OF FACT
- Claimant, E. B., sustained a compensable back injury on (date of injury).
- Claimant's treating doctor, Eric Scheffey, M.D., recommended Claimant undergo spinal surgery.
- Dr. Scheffey, in compliance with applicable TWCC rules, submitted a TWCC-63 form to the Commission.
- Carrier made a request to the Commission that Claimant receive a second opinion regarding the necessity of spinal surgery.
- The Commission sent a list of doctors to the Carrier and Dr. Scheffey from which two doctors would be chosen to examine Claimant.
- James Graham, M. D., and Michael Heggenes, M. D., were chosen to examine Claimant and submit their opinions to the Commission regarding the necessity for spinal surgery.
- Initially neither doctor concurred with Dr. Scheffey, and Claimant's spinal surgery recommendation was withdrawn.
- In September 2000, Claimant was again examined by Drs. Graham and Heggenes. This time, both doctors concurred with Dr. Scheffey and submitted their findings to the Commission.
- On October 18, 2000, the Commission sent out a letter notifying Dr. Scheffey and Carrier that both second opinion doctors agreed with Dr. Scheffey's opinion.
- On October 20, 2000, Carrier requested a Contested Case Hearing (CCH) with the Commission to dispute the Commission's finding of concurrence by the second opinion doctors.
- On October 24, 2000, Claimant underwent spinal surgery at the Provider's facilities.
- Provider billed Carrier for the spinal surgery performed on Claimant, and Carrier denied payment.
- Provider filed a Request for Medical Dispute Resolution with the Medical Review Division of the Texas Workers= Compensation Commission (Commission), seeking reimbursement for the spinal surgery.
- On June 19, 2001, the Commission's Medical Review Division found Provider was entitled to reimbursement in the amount of $95,107.40 for the spinal surgery.
- Carrier filed a request for hearing before the State Office of Administrative Hearings (SOAH).
- Notice of the hearing was sent April 11, 2002.
- The notice 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 sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
- The hearing was held April 29, 2002, with ALJ Steven M. Rivas presiding and representatives of the Provider, Carrier, and Commission participating. The hearing was adjourned the same day.
- The second opinion process was correctly followed by Dr. Scheffey and Provider.
- Provider is entitled to reimbursement of $95,107.40 from Carrier.
CONCLUSIONS OF LAW
- The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act (the Act), Tex. Lab. Code Ann. ch. 401 et seq.
- SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. ' 413.031(d) and Tex. Gov=t Code Ann. ch. 2003.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov=t Code Ann. '' 2001.051 and 2001.052.
- 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 in accordance with Tex. Lab. Code Ann. ' 408.021.
- The request for spinal surgery and the second opinion process complied with Tex. Lab. Code Ann. ' 133.206.
- The Carrier failed to prove Provider did not comply with the second opinion process.
- Pursuant to foregoing Findings of Facts and Conclusions of Law, Provider is entitled to a total of $95,107.40 in reimbursement.
IT IS, THEREFORE, ORDERED that Provider, Doctors Hospital-Tidwell, is entitled to reimbursement of $95,107.40 from the Carrier, National American Insurance Company, for the spinal surgery performed on Claimant.
Signed this 24thday of June, 2002.
State office of administrative hearings
Steven M. Rivas Administrative Law Judge
- Page 37 of the Certified Record.↑