RAUL HERNANDEZ, Employee, v. BERGERSON CASWELL, INC., and HARTFORD INS. GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 2, 2002

                       

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; MEDICAL TREATMENT & EXPENSE - SECOND OPINION.  Although Minn. R. 5221.6050, subp. 9.C.(5), provides an insurer may require a second opinion from a physician of the employee=s choice, prior to non-emergency surgery, and that the health care provider may not perform the surgery until the employee provides a second opinion to the insurer, Minn. Stat. ' 176.135, subd. 1a, explicitly states that failure to obtain a second surgical opinion shall not be reason for nonpayment of charges for the surgery.  The compensation judge properly held that the employer and insurer were not relieved from their obligation to pay for the surgery where the employee proceeded with the surgery before a second opinion, requested by the employer and insurer, was obtained.

 

MEDICAL TREATMENT & EXPENSES - TREATMENT PARAMETERS; MEDICAL TREATMENT & EXPENSE - INDEPENDENT MEDICAL EXAMINATION.  If prior notification of surgery is required, Minn. R. 5221.6050, subp. 9.C.(6), provides the employer and insurer may elect to obtain an independent medical examination (IME).  The proposed surgery may not be pro­vided pending the IME if the insurer notifies the employee within seven working days of the prior notification.  Moreover, the employee may elect to proceed with the surgery after 45 days following a timely request for an IME.  Minn. R. 5221.6050, subp. 9.C.(6), restricting the provider from performing surgery while an IME is pending is not applicable in this case as the employer and insurer did not notify the employee of the IME within seven working days of the employee=s December 3, 2001 medical request, and the surgery was not performed until February 6, 2002, more than 45 days after the employer and insurer=s response to the employee=s medical request.  

 

Affirmed.

 

Determined by Johnson, C.J., Wilson, J., and Pederson, J.

Compensation Judge: Jane Gordon Ertl

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s determination that under Minn. R. 5221.6050, subp. 9.C., the medical providers were not barred from payment or reim­bursement for the medical expenses for the employee=s nonemergency surgery performed on February 6, 2002.  We affirm.

 

BACKGROUND

 

Raul Hernandez, the employee, was injured in a motor vehicle accident on July 26, 2000, while working for Bergerson Caswell, Inc., the employer, then insured by Hartford Insurance Company.  The employer and insurer admitted liability for the employee=s personal injury. 

 

On October 17, 2001, the Minnesota Department of Labor and Industry certified a dispute between the parties^[1] regarding a two-level fusion at L4-5 and L5-S1 recommended by Dr. Mazen H. Khayata, an Arizona neurosurgeon.  (Judgment Roll, Cert. of Dispute.)  On December 3, 2001, the employee filed a Medical Request seeking authorization for the fusion surgery.  In a  Medical Response filed December 7, 2001, the employer and insurer stated they were Aexercising their right under Rule 5221.6050, subp. 9(C) to obtain a second opinion.@  (Judgment Roll, Medical Response.)  On December 6, 2001, counsel for the insurer wrote to the employee, his attorney and Dr. Khayata advising them that Apursuant to Minn. Rule 5221.6050, subp. 9(C), The Hartford has requested that the employee undergo a second opinion to address the reasonableness and necessity of the proposed surgery.@  (Resp. Ex. 3.)  By facsimile dated February 5, 2002, counsel for the employer and insurer wrote to the employee=s attorney to advise him the employee was scheduled for an independent medical evaluation (IME) on March 4, 2002.  (Resp. Ex. 4.)  On February 6, 2002, Dr. Khayata performed the fusion surgery.  On March 4, 2002, the employee appeared for the IME but the doctor declined to do the examination because the employee had already undergone the surgery. 

 

The dispute was heard by Compensation Judge Jane Gordon Ertl of the Office of Administrative Hearings on March 8, 2002.  In a Findings and Order served and filed April 25, 2002, the compensation judge found Minn. R. 5221.6050, subp. 9.C., did not bar claims for payment of the medical expenses for the surgery.  The judge further found the surgery performed by Dr. Khayata was reasonable, neces­sary and causally related to the work injury.  Accordingly, the judge ordered the employer and insurer to pay for the surgery performed on February 6, 2002.  The employer and insurer appeal. 

 

DECISION

 

1.  Treatment Parameters - Second Opinion

 

The employer and insurer appeal the compensation judge=s order that they pay the expenses for the employee=s surgery performed on February 6, 2002.  They contend Minn. R. 5221.6050, subp. 9.C., gives the employer and insurer the right to a second opinion prior to any non-emergency surgery.  In this case, the employee proceeded with the nonemergency surgery before a second opinion was obtained.  Ac­cordingly, the appellants ask the compensation judge=s award of benefits be reversed.  We are not persuaded.

 

Minn. R. 5221.6050, subp. 9.C., addresses prior notification by a health care provider to an insurer.  If prior notification of surgery is required under the rule,^[2] subpart 9.C.(5) provides Athe insurer may require that the employee obtain a second opinion from a physician of the em­ployee=s choice under Minnesota Statutes, section 176.135, subd. 1a.@^[3]  In this case, although the employee did not obtain a second opinion, we conclude such failure does not relieve the employer and the insurer from their obligation to pay the reasonable necessary medical expenses for the surgery.

 

Minn. R. 5221.6050, subp. 9.C.(5), states Athe health care provider may not per­form the nonemergency surgery until the employee provides the second opinion to the insurer.@  Minn. Stat. ' 176.135, subd. 1a, provides, however, that A[f]ailure to obtain a second surgical opinion shall not be reason for nonpayment of the charges for the surgery.  The employer is required to pay the reasonable value of the surgery unless the commissioner or compensation judge determines that the surgery is not reasonably required.@  The employer and insurer=s interpretation of the rule is, there­fore, in direct conflict with the statute.  This court may not interpret or apply a rule in a manner inconsistent with explicit statutory language.  See: Green v. Whirlpool Corp., 389 N.W.2d 504, 28 W.C.D. 713 (1986) (rules adapted by the Department of Labor and Industry must implement the purpose of the statute).  In this case, the compensation judge concluded the surgery was reasonably required.  Accordingly, the employee=s failure to obtain a second opinion is not a bar to the employee=s right to payment of or reimbursement for surgical expenses.

 

2.  Treatment Parameters - Independent Medical Examination

 

The employer and insurer further contend the employee=s unilateral decision to pro­ceed with surgery denied them their right to obtain an independent medical examination as provided by  Minn. R. 5221.6050, subp. 9.C.(6).  Accordingly, they assert the compensation judge erro­neously ordered them to reimburse the cost of the surgery contrary to the provisions of the rule.  Again, we disagree.

 

Minn. R. 5221.6050, subp. 9.C.(6), provides that where prior notification of a pro­posed surgery is required under the rule, Athe insurer may elect to obtain an examination of the em­ployee by the employer=s physician under Minnesota Statutes, section 176.155, sometimes referred to as an >independent medical examination.=@  By his Medical Request, filed December 3, 2001, the employee requested authorization for the recommended surgery.  On December 6, 2001, counsel for the insurer wrote to the employee, the employee=s attorney and Dr. Khayata advising them that AThe Hartford has requested that the employee undergo a second opinion to address the reasonableness and necessity of the proposed surgery,@ citing Minn. R. 5221.6050, subp. 9.C.  This, apparently, was a request that the employee obtain a second opinion under subpart 9.C.(5) of the rule.  It was not until February 5, 2002, that the insurer notified the employee that an IME had been scheduled for March 4, 2002.  Minn. R. 5221.6050, subp. 9.C.(6), states that A[i]f the insurer notifies the employee and health care provider of the examination within seven working days of the provider=s notification, the proposed nonemer­gency surgery may not be provided pending the examination.@  The insurer did not notify the em­ployee of the IME within seven working days of December 3, 2001, the date the employee filed his Medical Request.  Moreover, even assuming a request for an IME was made within seven working days of prior notification,^[4]  subpart 9.C.(6) further provides that Aafter 45 days following the insurer=s request for an [independent medical] examination, the health care provider may elect to proceed with the surgery, subject to a deter­mination of compensability@ by a compen­sation judge.  The surgery was not per­formed until February 6, 2002, more than 45 days after Decem­ber 7, 2001.  Accordingly, Minn. R. 5221.6050, subp. 9.C.(6), does not apply to bar payment or reimbursement for medical expenses in this case.  The compen­sation judge=s decision is, therefore, affirmed.

 

3.  Reasonableness and Necessity

 

The employer and insurer appealed the compensation judge=s finding that the surgery was reasonable and necessary but did not brief the issue.  Accordingly, the issue is waived and will not be decided by the court.  Minn. R. 9800.0900, subp. 2.