DECISION AND ORDER

This case involves a dispute regarding the decision by Texas Mutual Insurance Company (Carrier) to not reimburse Lone Star Radiology (Provider) for a second opinion review of an x-ray of ____a workers’ compensation claimant (Claimant). The amount in dispute is $42 plus interest. Carrier has appealed the order of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission), which required reimbursement.^[1] In this decision, the Administrative Law Judge (ALJ) concludes the second opinion x-ray review was not medically necessary treatment for Claimant’s compensable injury and, therefore, Carrier is not liable to reimburse Provider for the treatment.

I. Background Facts

Claimant suffered a compensable knee injury on________, when she slipped and fell while working at a ________ restaurant. Claimant received treatment, but suffered continued pain. Over a year after the injury, Claimant received treatment from Dr. Rhonda Dungan, a chiropractor. Dr. Dungan examined Claimant on July 6, 2001. At that time, Dr. Dungan had x-rays taken of Claimant’s right knee. Dr. Dungan examined the x-rays, concluded they were normal, and discussed her findings with Claimant on July 9, 2001. Dr. Dungan then referred the x-rays to Provider for a second opinion, which was her standard practice.^[2] Dr. Kenneth Lustik (associated with Provider) reviewed the x-rays, also concluded they were normal, and issued a report to Dr. Dungan with his findings. Provider then billed Carrier for the cost of Dr. Lustik’s second opinion review of the x-rays.

Carrier denied reimbursement for Dr. Lustik’s services, asserting there was no medical necessity for a second opinion review of the x-rays. Provider requested medical dispute resolution regarding the denied reimbursement. The dispute was referred to an IRO for resolution, and the IRO concluded that the second opinion review of the x-rays was medically necessary. Based on the IRO determination, MRD ordered Carrier to reimburse Provider for Dr. Lustik’s review of Claimant’s x-rays. Carrier then appealed.

II. Discussion

The real issue in this case is whether it is medically reasonable and necessary for a second opinion consultation to be requested and performed simply as a matter of standard practice on a normal x-ray showing no abnormalities. The determination of the issue in this case is not dependent on the specific circumstances or facts of Claimant’s injury, because the uncontroverted evidence establishes that there was nothing unusual about Claimant’s condition or medical documentation that would have specifically warranted a second opinion consultation. Rather, the evidence shows that Dr. Dungan’s practice is to always order second opinion consultations on new x-rays taken in her office. Dr. Dungan testified that, although she was trained in reviewing x-rays, she did not have the expertise that a chiropractic radiologist would have in reviewing x-rays for subtle changes or pathologies. To ensure that patients are given the best possible care and to avoid the potential for misread x-rays, Dr. Dungan followed a practice of referring for second opinion consultation all new x-rays taken in her office. In support of her practice, Dr. Dungan testified that she had previously missed subtle indications in x-rays and that when the indications had been diagnosed by the second opinion physician, it radically changed the course of treatment to be provided to the patient.^[3] When asked why she didn’t refer the x-rays to a radiologist in the first place, without reviewing them herself, Dr. Dungan testified that she is able to implement treatment sooner if she reviews the x-rays for any obvious pathologies, fractures, etc. prior to sending them out for the second opinion review.^[4]

Carrier argues that a second opinion review was not medically necessary in regard to Claimant’s x-rays, and that a practice of sending out all x-rays for second opinions is not medically reasonable nor necessary. As for Claimant’s specific x-rays, Carrier notes that the initial x-ray review was performed by Dr. Carter Outlaw, an associate of Dr. Dungan. In filling out the internal radiographic report regarding the x-rays, Dr. Outlaw did not check the box indicating a second opinion was needed.^[5] Moreover, on the form referring the matter to Provider, Dr. Dungan did not identify any specific concerns regarding the x-rays nor any reason why Claimant’s particular x-rays needed a second opinion.^[6] Carrier points out that Dr. Dungan has offered no specific justification for referring Claimant’s x-rays for second opinion other than it was just her standard practice. Finally, Carrier presented the testimony of Bill Defoyd, D.C., who testified that it was not within the standard of care nor medically necessary to refer Claimant’s x-rays for a second opinion consultation.

Carrier also challenges Dr. Dungan’s practice of always referring x-rays for second opinions, contending that it cannot be the standard of care for a physician to always obtain second opinions, regardless of whether the physician has found or diagnosed any abnormality or pathology. Under such a practice, Carrier argues that every physician would be getting second opinions on every examination performed, and that is simply not realistic, practical, or medically sound. Similarly, Dr. Defoyd testified that such a practice is not within the standard of care. Carrier also argues that such a practice runs afoul of the Labor Code and the Commission’s rules. The Labor Code requires that medical treatment be provided in a cost effective manner, and Carrier argues that referring all new x-rays for second opinions is not cost effective. Also, the Commission’s rules require that the clinical rationale for referring a matter for a second opinion must be clearly delineated.^[7] Carrier contends that simply having a practice of referring matters out for second opinion out of an abundance of caution does not meet the requirement for a “clearly delineated clinical rationale.”

After considering the evidence and the arguments of the parties, the ALJ finds that the preponderance of the evidence supports the conclusion that a second opinion review of Claimant’s x-rays was not medically necessary. Consequently, Provider’s claim must be denied. In reaching this conclusion, the ALJ rejects Provider’s argument that the benefit of having the second opinion, versus the limited cost, justifies Dr. Dungan’s practice. Rather, as asserted by the Carrier in its written closing arguments, the ALJ concludes that the applicable rules and statute require a case-specific reason for referring the x-rays for a second opinion review.

In this case, Carrier’s evidence (specifically the testimony of Dr. Defoyd) establishes that there was no medical justification for referring Claimant’s x-rays for a second opinion consultation. While the ALJ does not dispute that there is virtually always some benefit in getting second opinions (and third opinions, and so on), it is not practical nor medically necessary to always do so. It also is not cost effective nor cost-containing to do so. Ultimately, if a treating doctor undertakes a medical task, that doctor should be able to carry out that task in a medically competent manner. If the doctor is unable to carry out the task, then she should refer the task to another doctor for handling. When genuine issues of concern arise, it would be appropriate to obtain second opinions; but second opinions should not be needed in conducting routine tasks such as reviewing an x-ray with no abnormalities noted. Dr. Dungan testified that her initial review of the x-rays allows her to begin treatment immediately. However, given the relatively short time frame in which x-rays can be sent out for review and returned (in this case, Dr. Lustik’s second opinion was provided within a few days), the ALJ sees no justification for Dr. Dungan to review and charge for x-rays that she knew would be referred to a radiologist for reading. Absent a specific clinical reason, it was not appropriate or medically necessary for another doctor to review Claimant’s x-rays after Dr. Dungan had already read them. Therefore, reimbursement is not required.

III. Findings of Fact

1. ___ (Claimant) suffered a compensable knee injury on_________, when she slipped and fell while working at a __________.
2. At the time of Claimant’s injury, Texas Mutual Insurance Company (Carrier) was the workers’ compensation insurance carrier for Claimant’s employer.
3. Claimant received treatment, but suffered continued pain.
4. Over a year after the injury, Claimant received treatment from Dr. Rhonda Dungan, a chiropractor. Dr. Dungan examined Claimant on July 6, 2001, and had x-rays taken of Claimant’s right knee.
5. Dr. Carter Outlaw, an associate of Dr. Dungan, examined the x-rays and concluded they were normal.
6. On July 9, 2001, Dr. Dungan reviewed Dr. Outlaw’s findings and discussed them with Claimant.
7. Dr. Dungan then referred the x-rays to Dr. Kenneth Lustik, associated with Lone Star Radiology (Provider), for a second opinion.
8. At all times in issue, Dr. Dungan’s standard practice was to refer new x-rays for a second opinion, regardless of what the x-rays showed.
9. Dr. Lustik reviewed the x-rays, concluded that they were normal, and issued a report to Dr. Dungan with his findings on July 13, 2001.
10. Provider billed Carrier for the cost of Dr. Lustik’s second opinion review of the x-rays.
11. Carrier denied reimbursement for Dr. Lustik’s services, asserting there was no medical necessity for a second opinion review of the x-rays.
12. Provider filed a request for medical dispute resolution with the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission.
13. MRD referred the dispute to an independent review organization (IRO) for resolution.
14. On July 18, 2002, the IRO issued a decision finding that the second opinion x-ray consultation was medically necessary.
15. On July 23, 2002, MRD issued an order consistent with the IRO determination, requiring Carrier to reimburse Provider for Dr. Lustik’s review of Claimant’s x-rays.
16. On August 9, 2002, Carrier filed a request for hearing before the State Office of Administrative Hearings (SOAH).
17. Notice of the hearing was sent on September 16, 2002.
18. A hearing was conducted by SOAH, before Administrative Law Judge Bill Zukauckas, on November 18, 2002. Representatives of Carrier and Provider appeared and participated. The hearing adjourned the same day, and the record closed on December 11, 2002, after the parties submitted written closing arguments.
19. It is not within the standard of care to refer x-rays for a second opinion consultation when the x-rays are normal, there is nothing unusual, and there is no specific clinical rationale for a second opinion consultation.

IV. Conclusions of Law

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Labor Code Ann. §413.031 (Vernon Supp. 2002).
2. 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 of the Act and Tex. Gov’t Code Ann. ch. 2003 (Vernon 2002).
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 (Vernon 2002) and 28 Tex. Admin. Code ch. 148.
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
5. Carrier has the burden of proof in this matter. 28 TAC §148.21(h).
6. Carrier established, by a preponderance of the evidence, that the second opinion x-ray consultation was not reasonable and necessary medical care under Tex. Labor Code Ann. §§ 408.021 and 401.011(19) for the treatment of Claimant.
7. The Provider’s request for reimbursement should be denied.

ORDER

IT IS ORDERED that Lone Star Radiology is not entitled to reimbursement from Texas Mutual Insurance Company for the second opinion x-ray consultation performed for Claimant on July 13, 2001.

Signed this 18^th day of December, 2002.

BILL ZUKAUCKAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The dispute was resolved by an independent review organization (IRO) and the order requiring reimbursement was issued by MRD.↑
2. Dr. Dungan testified that she always refers new x-rays for a second opinion. Ex. 1, at 26.↑
3. Ex. 1, at 58.↑
4. Id. at 57.↑
5. Ex. 1, at 17 and 56, and attachment 1.↑
6. Ex. 1, at 21, and attachment 2.↑
7. See 28 Tex. Admin. Code§134.1003(c)(3) (effective at all times relevant herein).↑