DECISION AND ORDER

I. Summary

The___________________. or Carrier) sought review of a decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC or Commission) awarding Rio Grande Valley Orthopedic Center (Provider) reimbursement for performance of spinal surgery on Claimant. In addition, the MRD ordered reimbursement for bone harvesting, supplies and other items related to the surgery. The MRD awarded a total of $6,901.50 in reimbursement to Provider, nearly all of which was the cost for the surgeon and assistant surgeon for the procedure performed on January 3, 2001. Based on the evidence, the Carrier carried its burden to show there was no medical emergency warranting by-passing the preauthorization procedure, so is not liable for the costs of the surgery, or any related costs.

Administrative Law Judge (ALJ) Cassandra Church convened a hearing on these issues on September 3, 2002, and the record closed on that date. William Maxwell appeared on behalf of the Rio Grande Valley Orthopedic Center; Dean G. Pappas appeared for the Carrier.The Commission did not participate.

II. Discussion

A. Background Facts

Carrier denied reimbursement for two sessions of spinal surgery performed by Provider on January 3 and 8, 2001, on the basis that the surgery was unnecessary medical treatment.^[1] It also denied payment for X-rays, supplies and items used by Provider in connection with the two surgeries. Provider argued the surgeries constituted emergency spinal surgery. Under TWCC statutes and rules governing spine surgery, a carrier is not required to pay for surgery that has not been preauthorized, unless it is performed to respond to a medical emergency. TEX. LAB. CODE ANN. §§ 408.026 and 413.014; 28 Tex. Admin Code (TAC) §§133.1 (a)(7)(A) and 133.206 (a)(2).^[2] Once a carrier’s liability is established under the medical emergency exception, the carrier is limited to challenging the reasonableness of the fee charged for the procedure. However, a carrier would still be entitled to challenge the medical necessity of care “related to” the surgery. 28 TAC 133.206(b)(3).

On January 3, 2001, Dr. Ruben Pechero, M.D., performed an anterior-approach (front) radical diskectomy of the spine at the L4-L5 levels, including an interbody fusion and insertion of supportive cages at that level. (Pet. Exh. 14). Five days later, on January 8, 2001, Dr. Pechero performed a posterior-approach (rear) laminectomy, with fusion and instrumentation, also at the L4-L5 level of Claimant’s spine. During the second surgery, a pedicle screw was added to the instrumentation already in place. (Pet. Exh. 15). Procedure notes from January 3, 2001, indicate the surgeon removed a herniated disk at the L4-L5 level. Notes from January 8, 2001, indicate the surgeon decompressed a “large sequestrated disk.” The precise location of the sequestrated disk treated on January 8, 2001, was not listed, although the notes did not describe treatment to any spine level other than the L4-L5 level. Both before and after the January 3, 2001 surgery, Dr. Pechero diagnosed an acute herniated disk at the L4-L5 level. Both before and after the January 8, 2001 surgery, Dr. Pechero’s diagnosis of Claimant’s condition was a sequestrated disk at the L4-L5 level.^[3]

On December 13, 2000, Provider had sought preauthorization for the two-phase spine surgery that he performed in January 2001. Carrier had requested a second opinion, and that examination had been scheduled for January 11, 2001. (Resp. Exh. 1, p. 3). On January 1, 2001, Provider advised the Carrier’s adjustor that Claimant’s medical condition had changed. Immediately before the date of the first procedure, Provider also contacted representatives of the insured and of Carrier, engaging in a conference call with them on the proposed surgery. (Resp. Exh. 1, p. 13).^[4] Despite that history, the parties agreed that the Carrier had not preauthorized either surgery on or before the dates on which they were performed.

Provider asserted that, notwithstanding his pending request for preauthorization, the Claimant’s condition deteriorated so rapidly in the last half of the month of December that he was required to change his proposed course of action and operate immediately. In his letter to Carrier dated January 1, 2001, Dr. Pechero stated Claimant’s condition had “worsened,” and that he was in “extremely severe pain” in the lumbosacral spine with radiation of the pain to the right leg and foot. Dr. Pechero stated that the Claimant presented on January 1, 2001, the following new or intensified symptoms: drop-foot^[5] and severe weakness of the extensor hallucis longus,^[6] bladder incontinence and an inability to defecate. (Pet. Exh. 2, p. 7). However, some of these symptoms were clearly not new, but had been observed as early as November 2000; the pain in the spine and leg radiculopathy were noted in mid-December 2000, and indeed, “moderate” compression of the thecal sac had been noted as early as February 1999. (Pet. Exh. 2, pp. 10-17).

After performing the two surgeries, Provider unsuccessfully sought reimbursement from Carrier for both surgeries and all related costs. After reviewing Provider’s claims, the MRD awarded reimbursement to Provider for the first of two surgeries Provider performed on Claimant in January 2001, but denied it for the second. The MRD concluded that the surgery on January 3, 2001, was an emergency procedure, but that the follow-up procedure performed on January 8, 2001, was not. (Resp. Exh. 1, p. 4). Since the latter was not preauthorized, the MRD did not order Carrier to reimburse any costs. Provider did not appeal the MRD’s decision on the second surgery, so payment for it is not in issue in this case.

B. Analysis of Evidence

Carrier argued that the evidence did not support the surgeon’s argument that either or both of the surgeries were required by medical emergency, so were subject to the usual preauthorization requirement. For its part, Provider argued that the Claimant displayed a rapidly-deteriorating neurological condition immediately prior to the surgery that warranted emergency intervention. Provider argued that, from a medical point of view, the two surgeries were essentially two phases of the same emergency medical treatment, and that the totality of circumstances supported the intervention. Further, Provider argued all related costs were necessary treatment in aid of the surgery and Claimant’s recovery from it.

There was no dispute regarding the reasonableness of any of the specific costs Provider billed for the surgery and related care. Nor was there any dispute by the Carrier that any particular item of related care was unnecessary B merely that they were tied to a procedure they determined was not compensable.

To make its case, Carrier relied on its expert’s analysis of the medical record, and on Claimant’s long-term medical history. Testifying on behalf of Carrier, Dr. Aaron Combs, M.D., an orthopedic surgeon, contended that Provider’s claim of an emergency did not match up with the facts regarding pre-surgery tests, or with the timing of the two procedures.^[7] Dr. Combs analyzed the treatment provided on the basis that the Claimant’s condition appeared to have been cauda equina syndrome, which is a severe compression of the sacral nerve roots. He explained that emergency surgery was the best treatment for cauda equina syndrome, as waiting too long to relieve the compression can cause permanent harm to the patient. That is, early surgical intervention makes it more likely the patient will retain bowel and bladder control and other lower-body nerve functions, because early intervention gives the nerves the best chance to heal.

Dr. Combs testified that he found he found limited evidence in the record of standard testing for cauda equina syndrome, although the Claimant presented symptoms suggesting that condition.^[8] Of most concern to Dr. Combs was the Provider’s choice of an anterior (front) approach to the spine for the first of the two surgeries. Dr. Combs testified that an anterior approach would not allow a surgeon to safely reach the sacral nerve roots to decompress them without serious risk to the patient, including the risk of death. Rather than approaching the spine from the front of the body, as was done in this case, he testified that in the cause of treating cauda equina syndrome a surgeon would use a posterior (rear) approach to rapidly reach and decompress the sacral nerve root area. He also stated that the week-long delay in decompressing the affected nerves was inconsistent with Provider’s assertion that Claimant’s condition required immediate surgery.

However, Dr. Combs did not directly address the issue of whether a herniated or sequestrated disk at the L4-L5 level could, in and of itself, cause nerve compression sufficiently severe so as to warrant immediate surgical intervention. Indeed, Dr. Combs’ critique of the pre-surgery procedure relied in large part on his assertions that Dr. Pechero’s records did not show he had properly tested for the possibility of cauda equina syndrome. That argument suggests that the symptoms that the Claimant presented were severe enough to warrant testing for such a serious condition. Further, Dr. Combs did not directly address the issue of why a radical diskectomy at the L4-L5 level could not have relieved entirely or ameliorated the nerve compression that was apparently causing Claimant’s symptoms. Nor did he state that an anterior approach to perform a radical diskectomy of a level in the lumbar spine would be life-threatening. There is no indication any surgical procedure was performed on any sacral area. These gaps in Dr. Combs’s testimony left some medical questions unanswered.

The effectiveness of Dr. Combs’ argument was also undercut by the fact he had not seen the records of Dr. Pechero’s examination of Claimant at the hospital where the surgery was performed. Dr. Combs was emphatic in stating that one of the most important tests for severe compression of the caudal nerves was the peri-anal test. While Dr. Pechero’s records of his in-office exams were not clear on that point, the record at the time of Claimant’s hospital admission appears to show he conducted that critical test. (Resp. Exh. 1, pp. 130-132).

Notwithstanding the above concerns, the heart of Dr. Combs’ testimony was that the medical evidence did not clearly demonstrate that Claimant underwent such a radical change in condition between December 13, 2000, and January 3, 2001, that emergency surgery was warranted, and that waiting a week to decompress nerves alleged to be causing severe neurological symptoms was inconsistent with emergency treatment. On those two key points, Dr. Combs’ testimony was both cogent and credible. More importantly, the Claimant’s medical history itself supports his conclusions.

Records and tests leading up to the latter part of December show a gradually-deteriorating condition, or a continuing problem, rather than a rapid decline or sudden onset of symptoms. And the records from the two-week period immediately before the operation are, at best, ambiguous.

For example, although Dr. Pechero recorded that Claimant experienced severe radiating pain (radiculopathy) just before the operation, Claimant’s long-term history shows that Claimant had been struggling with pain throughout the period Dr. Pechero treated him. Claimant experienced ongoing pain both before and after the laminectomy Dr. Pechero performed on July 13, 1998. Notes from that surgery show that Dr. Pechero performed a diskectomy of a sequestrated disk at L4, with a bilateral lumbar laminectomy at L4-L5 level. (Pet. Exh. 19, p.116).^[9] At that time, Dr. Pechero also stated that Claimant exhibited involuntary bladder function and rectal problem, as well as dropfoot.^[10] After the 1998 laminectomy, Claimant continued to experience leg pain, swelling, difficulty in performing physical tasks and the like.^[11] He was prescribed pain medications throughout that period for treatment of back pain. ( Pet. Exh. 1, p. 1).

The notes on the Claimant’s progression during December 2000 are similarly confusing. For example, an MRI performed on December 6, 2000, revealed continuing herniation of the disk material that remained at the L4-L5 level. However, the interpreting doctor did not suggest there were any emergency or potentially-emergent conditions. Dr. Cesar J. Tumakay, D.O., concluded there had been “moderate” degenerative changes to the L4-L5 segment after the 1998 surgery, as well as “minimal posterolisthesis.”^[12] He also noted there was some potential disk herniation at the L3-L4 level, but his report is conspicuously free of any reference to severe conditions or disk sequestration. (Resp. Exh. 1, p. 122). Approximately a week later, on December 13, 2000, Dr. Pechero noted that Claimant complained of spine pain, and radiating pain, and concluded there was severe sequestration of the disk, confirmed by MRI.^[13] (Pet. Exh. 1, p. 12). The only MRI examination in evidence was that performed on December 6, 2000. Neither Dr. Pechero’s later notes, nor Dr. Combs’ opinion report referenced any MRI examination performed after December 6, 2000.

On December 13, 2000, Dr. Pechero sought preauthorization for the surgery, which he proposed to do in two phases-as was done-in January 2001. Although it was clear from the notes that Dr. Pechero had concluded Claimant’s condition was changing for the worse, even less than a week before the surgery, on December 28, 2001, Dr. Pechero was unable to articulate what factors led to the change in condition, or the extent of Claimant’s change in condition. Instead, he merely listed factors he was observing, i.e., “severe neurological deficits,” and bladder problems.^[14] (Resp. Exh. 1, p. 137). Dr. Pechero apparently did not consider the bladder problem to be a neurological emergency on that date, since he referred Claimant to a urologist for evaluation of that problem. There is no evidence to suggest that Claimant was seen by a urologist, or that other causes for the bladder problem were ruled out before the surgery was performed. Further, it is not clear from the records how much Claimant’s condition worsened between December 28, 2000, and January 3, 2001.

Further, there is no evidence suggesting the majority of these same problems did not persist for at least a week, from December 28, 2000, until January 3, 2001, and possibly through January 8, 2001, when the nerve-decompression surgery occurred. The record shows that Dr. Combs and Dr. Pechero were in fair agreement that severe neurological deficits in the legs and feet, with accompanying bowel and bladder control problems, suggest early surgery, and that time is of the essence. Thus, the chief question that Claimant’s medical records left unanswered was, if Claimant was in such an extreme condition on December 28, 2000, why did the surgery not take place then? If, on the other hand, if the symptoms were ongoing and manageable, it is not clear what new event between December 28, 2000, and January 3, 2001, precipitated the medical crisis. Nothing in the medical records either before or after the surgeries in January 2001 suggests any reason or explanation why a serious, yet chronic, back problem suddenly changed into a medical emergency.

In addition, the ultimate diagnosis itself presented some ambiguities, when compared to the pre-surgery descriptions of Claimant’s condition. Although vertebral “collapse” was noted in a letter prepared by Dr. Pechero on January 1, 2001, the diagnoses on the surgery reports were sequestrated disk and herniated disk without reference to any other condition. (Pet. Exhs. 14, 15). It is not clear if a vertebral “collapse” occurred in December, and if so, when and how. Certainly the MRI findings of December 6, 2000, did not point to the existence of such a condition at that time, or the imminence of one.

The information from the examination at the time of Claimant’s admission to the hospital on July 3, 2001, is similarly unclear since bladder incontinence is noted, as is “classic dropped foot.” However, it was also noted that the patient’s reflexes were equal and normal in both lower extremities. (Resp. Exh. 1, pp. 47-48). The first notation of dropped foot had been January 1, 2001. (Resp. Exh. 1, p. 140).

In short, the greater weight of the evidence in the record regarding the need for the diskectomy performed on January 3, 2001, supports Carrier’s position that the surgery performed on that date was not documented as an emergency. As the surgery was neither preauthorized, nor an emergency, Carrier is not liable for payment for the procedure or for any of the related costs.

III. Findings of Fact

1. On______ ,____ (Claimant), slipped and suffered a compensable injury to his lower back while at his employment.
2. On May 28, 1998,_____________ was a self-insured public entity which provided workers’ compensation insurance to its employees.
3. Claimant was diagnosed with lumbar disk displacement, sciatica, sprain of the neck, and cervicocranial syndrome, as a result of his fall.
4. In July 1998, Claimant underwent a laminectomy at the L4-L5 levels of his spine, performed by Dr. Rubin Pechero, M.D., with the Rio Grande Valley Orthopedic Center (Provider).
5. The pre- and post-surgical diagnosis of Claimant’s condition on January 3, 2001, was acute herniated disk at the L4-L5 level.
6. The pre- and post-surgical diagnosis of Claimant’s condition on January 8, 2001, was sequestrated disk at the L4-L5 level.
7. Claimant did not have cauda equina syndrome, which is impairment of lower-body nerve functions caused by severe compression of the sacral nerve roots, or other caudal nerve compression. Treatment for cauda equina syndrome is emergency surgery.
8. Provider performed spine surgery on Claimant on January 3 and 8, 2001. The Carrier did not preauthorize either surgery.
9. On January 3, 2001, Provider performed an anterior radical diskectomy at the L4-L5 levels of the spine, performed an interbody fusion at the L4-L5 levels of the spine, and inserted stabilization cages.
10. On January 8, 2001, Provider performed a second lumbar laminectomy at the L4-L5 level, a spinal fusion, and decompression of the sequestrated disk material at the L4-L4 level. A pedicle screw was implanted.
11. On December 13, 2000, Provider had requested preauthorization for the surgeries described in Finding of Fact Nos. 8 and 9. Carrier had requested a second opinion, and had scheduled a physician’s visit on January 10, 2001, to obtain that opinion.
12. After performing both surgeries, Provider sought reimbursement from Carrier for the costs of each, include the surgeon’s and assistants’ fees, and costs related to the surgery including bone harvesting and in-office supplies.
13. The Carrier denied reimbursement to the Provider for the January 3, 2001, surgery and for all related costs on the basis that the surgery was neither preauthorized nor an emergency.
14. The Provider timely sought review by the Texas Workers’ Compensation Commission (Commission) of the Carrier’s determinations. On December 10, 2001, the Medical Review Division (MRD) of the Commission awarded reimbursement in the amount of $6,901.50, plus accrued interest, to the Provider for professional fees, and costs related to the January 3, 2001 surgery on the basis. The MRD determined that Provider had demonstrated it was surgery in response to a medical emergency.
15. On December 20, 2001, Carrier requested a hearing on the MRD decision.
16. On February 5, 2002, 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, and a statement of matters asserted.
17. Administrative Law Judge Cassandra Church conducted a hearing on the merits of the case on September 3, 2002; the record closed that day.
18. Claimant suffered ongoing pain before and after the 1998 spine surgery described in Finding of Fact No. 4. Claimant experienced leg pain, swelling and difficulty in performing certain physical tasks between 1998 and January 2001. Claimant had been prescribed various pain medications during this period for spine pain.
19. In December 2000, Claimant had continuing herniation of the L4-L5 levels, but only moderate degenerative changes since 1998. An MRI examination on December 6, 2000, did not show disk material separated, or sequestrated, from the main body of the disk, and showed dislocation or slippage of a disk between 2-3 millimeters, or .08 inch, from its normal position. No other severe conditions of the L4-L5 area were noted. The MRI was interpreted by Dr. Cesar J. Tumakay, D.O.
20. Claimant reported leg and spine pain on December 13, 2000.
21. On December 28, 2000, Claimant reported more severe leg and spine pain, and some weakness of the muscle that extends the right toe (extensor hallucis longus) and unspecified bowel and bladder difficulties. There was no documentation of incontinence, and Claimant was referred to a urologist for evaluation of the bladder problems.
22. There is no medical evidence Claimant was seen by a urologist before January 3, 2001, or that conditions other than nerve compression were ruled out as a source of Claimant’s bladder problems.
23. On January 1, 2001, Provider stated Claimant had a “collapse” of the L4-L5 lumbar segment, as well as a sequestrated disk at the L4-L5 level.
24. On admission to a hospital for the January 3, 2001, surgery, Provider performed the peri-anal test used to determine whether cauda equina syndrome is present. There was no diagnosis that Claimant had cauda equina syndrome, or sacral nerve compression.
25. There is no credible medical evidence showing Claimant’s severe, yet chronic, lower-back condition, present in mid-December 2000, deteriorated to an emergency condition on or by January 3, 2001, or that Claimant suffered a “collapse” of the L4-L5 vertebrae or other unstable vertebral fracture or condition of such critical nature that increased impairment might have resulted without immediate surgical intervention.
26. The spine surgery performed on January 3, 2001, was not performed to treat a diagnostically-documented emergency condition, within the meaning of 28 TAC §§ 133.1 and 133.206(a) (2).
27. Bone harvesting, and office supplies and other costs billed to Carrier were for medically necessary care related to the spine surgery, within the meaning of 28 TAC § 133.206 (b)(2).
28. All the following billed items were direct costs of the surgery performed on January 3, 2001, or medically-necessary care related to that surgery: CPT Codes 22558, 22899, 22820, 22558-85, 22899-85, 22820-85, all on the date of service of January 3, 2001; CPT Codes 99080-73 and 72100-WP on date of service of January 23, 2001, and CPT Codes 99080-73, K0216, 72100-WP, and A4649 on the date of service of January 24, 2001.

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 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. Carrier timely requested a hearing, as specified in 28 Tex. Admin Code (TAC) §148.3.
4. Proper and timely notice of the hearing was affected on the parties in accordance with Tex. Gov’t Code ch. 2001 and 28 TAC § 148.4(b).
5. Carrier has the burden of proving by a preponderance of the evidence that it should prevail in this matter, pursuant to 28 TAC § 148.21(h) and (i).
6. Carrier proved by a preponderance of the evidence that the surgery performed by Provider on January 3, 2001, was not in response to a documented emergency condition, within the meaning of 28 Tex. Admin Code (TAC) § 133.1 (a)(7)(A) and 133.206 (a)(2).
7. Carrier is not obligated to pay the direct costs of a non-emergency spine surgery that has not been preauthorized, under the terms of TEX. LAB. CODE ANN. §§ 408.026 and 413.014, or the cost of any medically-necessary related care.

ORDER

IT IS HEREBY ORDERED that _____________ is not obligated to reimburse Rio Grande Valley Orthopedic Center for the following cost items: CPT Codes 22558, 22899, 22820, 22558-85, 22899-85, 22820-85, all on the date of service of January 3, 2001; CPT Codes 99080-73 and 72100-WP on the date of service of January 23, 2001, and CPT Codes 99080-73, K0216, 72100-WP, and A4649 on the date of service of January 24, 2001.

Signed December 9, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

CASSANDRA J. CHURCH
Administrative Law Judge

1. The official denial code listed is “U,” unnecessary treatment. Notwithstanding this denial code, the record of the MRD proceeding makes it abundantly clear that the issue was not the necessity of the treatment itself, but whether it was appropriate to perform this procedure on an emergency basis, rather than the more usual application of that term.↑
2. Rule 133.1 (a)(7)(A) defines a medical emergency as the following:

(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. . . .

Rule 133.206(a)(2) regarding second opinions offers more specific language on what constitutes a medical emergency in regard to spine condition:

(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.↑

3. One medical dictionary, Dorland’s Illustrated Medical Dictionary, 28^th ed., 1994, defines a sequestered or sequestrated disk as follows:

Sequestered disk: A free fragment of the nucleus pulposum lying in the spinal canal outside the annulus fibrosus and no longer attached to the intervertebral disk. (P. 492).↑

4. As outlined in Provider’s argument to the MRD, there was contact with Carrier on January 2, 2001, the day before the first surgery:

Patient [Claimant] presented himself to the office on January 02, 2001 with EXTREMELY SEVERE PAIN in the lumbosacral spine with radiation to the right lower extremities. . . . On this same date the case was discussed with Mr. Mark Robinson (the adjustor) and Mr. Trevino (the risk manager for ________ on a three (3) way conference call, while Mr. Mena (case manager) stood next to the doctor, when the doctor advised them of the medical emergency to proceed with the surgery as soon as possible. Also, a letter was FAXED to the insurance adjustor (Mark Robinson) advising him that the patient’s condition had worsened. . . . .↑

5. Drop foot, alternately known as footdrop or danglefoot, is defined as follows:

Dropping of the foot from a peroneal or tibial nerve lesion that causes paralysis of the anterior muscles of the leg. Dorland’s, previously cited, at p. 648.↑

6. The extensor hallicus longus is the long muscle on the front the leg that connects to the big toe, and allows the toe to extend. Dorland’s, previously cited at pp. 729-730, 1071.↑
7. Included within Dr. Combs’ review of the medical data is his conclusion that the on-the-job injury may not have been the cause of the back symptoms which Claimant experienced between 1998-2000. (Pet. Exh. 1, p. 2). No information on the status of any pending compensability action was included in the record of this case, nor was any continuance sought to await the outcome of such a hearing, so the ALJ will proceed on the basis that the matter has been resolved, or never raised.↑
8. In his peer report, prepared on February 19, 2001, Dr. Combs found the medical records he had reviewed did not fully document an acute neurological condition requiring emergency procedure for treatment of either “sacral radiculopathy” or cauda equina syndrome. (Pet. Exh. 1). His testimony focused on cauda equina syndrome.↑
9. About two weeks before the surgery on July 13, 1998, an MRI scan of Claimant’s spine showed some damage. However, the physician interpreting the MRI did not suggest there was a potentially emergent condition. The concluding impression of Allan Kapilivsky, M.D., was as follows:

Impression: Sub ligamentous disk herniation at the level of L4-L5 with degenerative change of the posterior elements, causing moderate canal stenosis and compression of the thecal sac.

He noted that Claimant had a “mild” narrowing of the neural foramina (openings in the spine), but did not note any observations of any disk material that had become separated, or sequestrated, from the main body of the disk. (Resp. Exh. 18).↑

10. The history of that surgery also bore some similarity to this one, in that there was a last minute attempt to contact officials from TWCC and Claimant’s employee on the eve of surgery, which was apparently unsuccessful. Records of the MRD showed that the Claimant’s problems with “severe spastic muscles,” bladder and rectal problems, and other neurological problems showed up on an examination on July 7, 1998. (Resp. Exh. 11, pp. 63-64 ). In that case, MRD awarded reimbursement of $3,035.00 to Dr. Pechero for emergency surgery. (Resp. Exh. 8, p. 64).↑
11. Claimant reported pain or other leg problems during medical visits from throughout this period. [Pet. Exh. 1, pp. 77 (Aug. 5, 1998); 81 (October 8, 1998); 83 (November 10, 1998); 100 (March 28, 2000); 102 (May 23, 2000).]↑
12. In this context, this term apparently refers to rearward or backward shifting of one or more vertebrae examined, in this case those in the L4-L5 segment. Dr. Tumakay noted a shift of approximately 2-3 millimeters (mm) [or .08 inch].↑
13. At this time, Claimant went into shock and had to be treated for his medical condition.↑
14. Dr. Combs took some issue with the description of Claimant’s bowel and bladder conditions, noting that nerve compression generally leads to the inability to control elimination, rather than an inability to initiate elimination. While this may be a matter of how the symptom was recorded, this language further added to the ambiguity of Provider’s records. (Pet. Exh. 1, p. 37).↑