DECISION AND ORDER

Eric H. Scheffey, M.D., and Floyd Hardimon, D.O. (Providers), appealed the findings and decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD), which denied reimbursement for spinal surgery that was performed on Claimant _____. In this decision, the Administrative Law Judge (ALJ) finds Providers are not entitled to reimbursement from Insurance Company of the State of Pennsylvania (Carrier) for the spinal surgery performed on Claimant.

I.

JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

The contested issue of jurisdiction was settled after the hearing.^[1] There was no contested issue of notice. Those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter convened on June 23, 2003, at the State Office of Administrative Hearings (SOAH) before Steven M. Rivas, ALJ. The record remained open until July 11, 2003, to allow the parties time to submit briefs on matters of compensability and jurisdiction. Provider was represented by Marie Robertson, collector for East Harris County Orthopedic Associates, P.A. Carrier was represented by Steve Tipton, attorney.

II. DISCUSSION

Background Facts

Claimant _____ sustained a compensable back injury on________, while working at____. As part of her ongoing treatment, Claimant was referred to Providers for spinal surgery. On June 13, 2001, Providers submitted form TWCC-63 to the Commission to inform the Commission that Providers recommended Claimant undergo spinal surgery. 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. Dr. Lionberger and Dr. Craig McDonald, were the second opinion doctors chosen to render second opinions regarding the necessity of Claimant’s spinal surgery, and forward their opinions to the Commission. Neither doctor concurred with Provider’s recommendation.

On November 5, 2001, the Providers reinitiated the second opinion process by forwarding a request for an amended second opinion to the same doctors. Providers requested that Drs. Lionberger and McDonald submit amended second opinion reports to the Commission regarding the medical necessity of spinal surgery for Claimant. The amended second opinion reports, if any, apparently were never forwarded to any party in this matter. On January 29, 2002, Providers performed spinal surgery on Claimant.

B. Applicable Law

The Texas Labor Code contains the Texas Workers’ Compensation Act (the “Act”) 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: (1) cures or relieves the effects naturally resulting from the compensable injury; (2) promotes recovery; or (3) enhances the ability of the employee to return to or retain employment.

The Commission’s rule found at 28 Tex. Admin. Code (TAC) §133.206, additionally contains statutory language addressing when the carrier is liable for spinal surgery as part of the second opinion process. In particular, §133.206(b)(1) provides that a carrier is liable for spinal surgery costs 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.

Analysis and Conclusion

There is no dispute that both second opinion doctors disagreed with Claimant’s recommendation for spinal surgery. The parties seem to agree that if Carrier were liable for the costs of the surgery, it would not come under §133.206 (b)(1)(D), concurrence by both doctors. The Provider’s only basis for asserting that Carrier is liable for the costs of Claimant’s spinal surgery is reflected under §133.206(b)(1)(B), carrier waiver of the second opinion process.

Providers argued that because the second opinion doctors did not respond to Providers’ addendum, the second opinion process expired as a matter of law. However, Providers could not point to any such rule or statute that would allow this to be the case.

Carrier pointed out §133.206(l) governs resubmission of the second opinion process. This statute outlines the steps that are to be taken including the second opinion doctors’ responsibilities when a provider reinitiates the second opinion process. However, there is no provision contained here or elsewhere that calls for the expiration of the second opinion process if the second opinion doctors fail to respond. Furthermore, there is no rule or statute that deems the Carrier to have waived the second opinion process if the second opinion doctors fail to respond.

The Providers were responsible to continue the second opinion process and ensure one of the elements in § 133.206(b)(1) was met in order to receive reimbursement for the spinal surgery performed on Claimant. Because none of the provisions of § 133.206(b)(1) was met, Carrier is not liable for costs associated with the spinal surgery performed on Claimant.

III. FINDINGS OF FACT

1. Claimant,____, sustained a compensable back injury on________.
2. On June 14, 2001, Claimant’s treating doctor recommended Claimant undergo spinal surgery, and submitted a TWCC-63 form to the Texas Workers’ Compensation Commission (the Commission).
3. Insurance Company of the State of Pennsylvania (Carrier) requested that Claimant receive a second opinion regarding the necessity of spinal surgery.
4. Dr. Lionberger and Dr. Craig McDonald, were selected by the parties to examine Claimant and submit their opinions to the Commission regarding the necessity for spinal surgery.
5. On September 18, 2001, the Commission informed Claimant that both doctors had submitted their non-concurrence as to the medical necessity of Claimant’s spinal surgery.
6. On November 5, 2001, Claimant’s treating doctor re-initiated the second opinion process by requesting an amended second opinion from the same second opinion doctors.
7. An amended second opinion was never received by any party in this matter.
8. On January 29, 2002, Eric Scheffey, M.D., and Floyd Hardimon, D.O. (Providers), performed spinal surgery on Claimant.
9. Providers billed Carrier for the spinal surgery performed on Claimant, and Carrier denied payment.
10. Providers filed a Request for Medical Dispute Resolution with the Medical Review Division of the Commission, seeking reimbursement for the spinal surgery.
11. The Commission’s Medical Review Division found Providers were not entitled to any reimbursement for the spinal surgery performed on January 29, 2002.
12. Providers filed a request for hearing before the State Office of Administrative Hearings (SOAH).
13. Notice of the hearing was sent May 22, 2003.
14. 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.
15. The hearing convened on June 23, 2003, with Steven M. Rivas, Administrative Law Judge presiding. Marie Roberston, collector for East Harris County Orthopedic Association, P.A., represented the Providers. Steve Tipton, attorney, represented the Carrier. The record remained open until July 11, 2003, to allow the parties an opportunity to submit briefs on issues of compensability and jurisdiction.
16. The second opinion process was not properly completed by the Providers.
17. Providers are not entitled to any reimbursement from Carrier.

IV. CONCLUSIONS OF LAW

1. 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.
2. 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.
3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§2001.051 and 2001.052.
4. 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.
5. The request for spinal surgery and the second opinion process was not completed under the provisions of Tex. Admin. Code Ann. §133.206.
6. The Providers failed to prove they complied with the second opinion process.
7. Pursuant to foregoing Findings of Facts and Conclusions of Law, Providers are not entitled to any reimbursement for the spinal surgery performed on Claimant.

ORDER

IT IS, THEREFORE, ORDERED that Providers, Eric H. Scheffey, M.D., and Floyd Hardimon, D.O., are not entitled to any reimbursement from the Carrier, Insurance Company of the State of Pennsylvania, for the spinal surgery performed on Claimant.

Signed this 29^th day of July, 2003.

State office of administrative hearings

Steven M. Rivas Administrative Law Judge

1. The Carrier made a motion to dismiss, and remand this matter back to the Commission because issues of compensability were not yet settled. The parties submitted briefs on this issue, and after review of the briefs, the ALJ concluded this matter should not be remanded back to the Commission.↑