      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00675-CV



                         Texas Mutual Insurance Company, Appellant

                                                 v.

   Michael M. Stelzer, D.C. and Texas Workers’ Compensation Commission, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
     NO. D-1-GN-05-002187, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The issue presented in this administrative appeal is whether the Texas Workers’

Compensation Commission,1 when deciding a medical fee dispute between a chiropractor and a

worker’s compensation carrier, erred in deferring to the Texas Board of Chiropractic Examiners’s

prior determination that “needle EMG” is within the scope of chiropractic practice and ordering

reimbursement for such a procedure rather than independently addressing the scope-of-practice issue,

determining that needle EMG is not within the scope of chiropractic practice, and denying

reimbursement on that basis. The district court affirmed the Commission’s order. We will affirm.


       1
         Effective September 1, 2005, the legislature dissolved the Texas Workers’ Compensation
Commission and created the Division of Workers’ Compensation within the Texas Department of
Insurance. Act of June 1, 2005, 79th Leg., R.S., ch. 265, § 8.001, 2005 Tex. Gen. Laws 469, 607.
Since the underlying dispute began prior to the reorganization, all references in this opinion are to
the Texas Workers’ Compensation Commission.
               On May 16, 2003, appellee Michael M. Stelzer, D.C., performed a “needle EMG”2

procedure on a worker who had injured his right shoulder on the job. Stelzer subsequently

submitted a claim for reimbursement for the procedure to appellant Texas Mutual Insurance

Company. Texas Mutual denied the claim on the ground that needle EMG is outside the scope of

authorized chiropractic practice. The Medical Fee Guideline (MFG), which regulated Stelzer’s

entitlement to reimbursement for the service, provides:


       The MFG does not supersede scope of practice limitations for HCP [health care
       provider] specialties. The listed maximum allowable reimbursements (MAR) only
       apply when a licensed HCP is performing those services within the scope of practice
       for which the provider is licensed . . . .


28 Tex. Admin. Code § 134.201 (2009) (1996 Medical Fee Guideline adopted by reference).

               The dispute was submitted to the Commission, where it was reviewed by an

Independent Review Organization (IRO). See Tex. Lab. Code Ann. § 413.031 (West Supp. 2008);

28 Tex. Admin. Code § 133.308 (2009).3 Without addressing the scope-of-practice issue raised by

Texas Mutual, the IRO determined that the procedure was medically necessary and that Dr. Stelzer

was entitled to reimbursement. The Commission’s Medical Review Division (MRD) reviewed the

IRO’s decision and agreed, also without addressing the scope-of-practice issue. See 28 Tex. Admin.

Code §§ 133.305, 133.307 (2009).

       2
         “Needle EMG”—electromyography—is a diagnostic procedure used to verify healthy
nerve function.
       3
         For convenience, we cite to the current versions of the statutes and rules except where there
has been an intervening amendment that is material to our disposition of this appeal.



                                                  2
               Texas Mutual requested a hearing before the State Office of Administrative Hearings

(SOAH). See Act of May 3, 1995, 74th Leg., R.S., ch. 980, § 1.43, 1995 Tex. Gen. Laws 4912, 4923

(eff. Sept. 1, 1995) (providing for contested-case hearing before SOAH); Act of May 29, 2005,

79th Leg., R.S., ch. 265, § 3.245, 2005 Tex. Gen. Laws 553, 554 (eff. Sept. 1, 2005) (repealing

contested-case hearing provision); see also Act of May 18, 2007, 80th Leg., R.S., ch. 1007, § 2,

2007 Tex. Gen. Laws 3525, 3525 (eff. Sept. 1, 2007) (again providing for a SOAH contested-

case hearing). The administrative law judge (ALJ) found that in 1998, the Texas Board of

Chiropractic Examiners (TBCE), the agency that licenses and regulates chiropractors, had “ruled

that performance by a chiropractor of a needle EMG for the purposes of analyzing, examining,

or evaluating the biomechanical condition of the spine and musculoskeletal system, was within

the scope of the Texas Chiropractic Act,”4 that the procedures Stelzer had administered “were for

the purposes of diagnosing Claimant’s condition and were requested by Claimant’s treating doctor,”

and that Stelzer “was acting within the scope of his practice as defined by the TBCE.” The ALJ

concluded that Texas Mutual had failed to meet its burden of proving that Stelzer had “acted outside




       4
          In 1997 and 1998, the Board considered whether or not needle EMG is within the scope
of chiropractic practice and determined that “needle EMG [is] within the scope of chiropractic if a
chiropractor performs such procedure (1) to analyze, examine, or evaluate the biomechanical
condition of the spine and musculoskeltal system” and if the chiropractor is “properly trained” in
the performance of the procedure. The Board affirmed this interpretation in a letter to licensees
dated January 25, 2002, including a recommendation that chiropractors who perform the
procedure “obtain[] and complete[] a 120-hour course in electrodiagnosis offered at CCE
accredited chiropractic colleges” or earn “status as an ACA Diplomate in Neurology.” See Tex. Bd.
Chiropractic Exam’rs, TBCE Opinion: Acupuncture, Manipulation Under Anesthesia, and Needle
EMG as Being Within the Scope of Practice (ratified Sept. 11, 1997, amended May 7, 1998, and
May 1999); see also O’Neal v. Texas Bd. of Chiropractic Exam’rs, No. 03-03-00270-CV, 2004 Tex.
App. LEXIS 8254 (Tex. App.—Austin 2004, no pet.) (not designated for publication).

                                                 3
the scope of practice for chiropractors, as the Texas Board of Chiropractic Examiners (TCBE) has

interpreted the Texas Occupation Code, ch. 201, or its predecessor, the Texas Chiropractic Act,” or

that Stelzer “provided services outside the scope of practice rules applicable to treatment of injured

workers, as governed by the 1996 Medical Fee Guidelines, 28 Tex. Admin. Code § 134.201.” The

ALJ ordered that Texas Mutual reimburse Dr. Stelzer for the procedure. Texas Mutual then sought

judicial review in the district court, which affirmed the ALJ’s decision. This appeal followed.

               In a single issue, Texas Mutual argues that the Commission’s order must be reversed

because “[e]very applicable principle of statutory construction . . . demonstrate[s] that Needle EMG

is outside the statutorily authorized scope of practice of chiropractors.” It observes that both the

attorney general and a different SOAH ALJ have reached that conclusion.5 Texas Mutual also

asserts the 1998 TBCE “ruling” on which the Commission relied was incorrect, was beyond the

TBCE’s statutory authority, and was a void improper rulemaking. Further, Texas Mutual disputes

the notion, reflected in the ALJ’s ruling, that the 1996 MFGs required or allowed the Commission

to defer to the scope-of-practice determinations of other licensing boards and complains of the “the

refusal of the TWCC, the SOAH ALJ and the trial court to consider and decide the [scope-of-

practice] issue.”

               Dr. Stelzer and the Commission respond that the ALJ and the district court

acted properly by deferring to the TBCE’s scope-of-practice determination in applying the


       5
         See Op. Att’y Gen. No. DM-472 (1998); State Office of Admin. Hearings, The Texas Fund
f/k/a Texas Workers’ Comp. Ins. Fund v. Health & Med. Practice Ass’n & Texas Workers’ Comp.
Comm’n, Docket No. XXX-XX-XXXX.M4 (July 18, 2001); O’Neal, No. 03-03-00270-CV, 2004 Tex.
App. LEXIS 8254, at *2-5; see generally Texas Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n,
270 S.W.3d 777 (Tex. App.—Austin 2008, no pet.).

                                                  4
Medical Fee Guidelines. The Commission asserts that “the 1996 Medical Fee Guideline requires

the [Commission] to defer to another agency’s clear announcement on a scope of practice issue

(unless the announcement is patently illegal, of course).” The Commission reasons:


       To require the [Commission] to second-guess another agency’s scope of practice rule
       where that rule is not patently invalid or illegal would lead to confusion among health
       care providers and the undesirable result of having an agency opine on matters
       outside of its primary jurisdiction.


We defer to an agency’s interpretation of its own rules unless that interpretation is plainly erroneous

or inconsistent with the text of the rule or underlying statute. See Public Util. Comm’n v. Gulf States

Util. Co., 809 S.W.2d 201, 207 (Tex. 1991); Tennessee Gas Pipeline Co. v. Rylander, 80 S.W.3d

200, 203 (Tex. App.—Austin 2002, pet. denied). As the Commission observes, neither the text of

the MFG nor the labor code speaks to whether or how it should resolve scope-of-practice disputes

that arise in the context of medical fee disputes. The MFG merely states that it “does not supersede

scope of practice limitations for [health care provider] specialties” and that the MAR “only apply

when a licensed HCP is performing those services within the scope of practice for which the

provider is licensed,” but does not specify how the Commission determines the applicable “scope

of practice” when applying the rule. We cannot conclude that the Commission’s interpretation is

plainly erroneous or inconsistent with the rule.

               Applying the Commission’s interpretation here, the Commission would be guided

by the TBCE’s determination of whether needle EMG is within the scope of chiropractic practice

when applying the MFG. The parties agree that—whether correct or not—the TBCE at relevant

times interpreted the scope of chiropractic practice to include needle EMG, so long as the

                                                   5
chiropractor has received proper training in electrodiagnosis. The legislature has vested the Board

with authority to determine scope-of-practice issues. See Act of May 10, 1999, 76th Leg., R.S.,

ch. 388, § 1, 1999 Tex. Gen. Laws 1431, 1533-54 (defining chiropractic scope of practice and

authorizing the Board to adopt rules necessary to regulate the practice of chiropractic and for

the administration and enforcement of the statute); see also Act of May 27, 2005, 79th Leg., R.S.,

ch. 1020, § 8, 2005 Tex. Gen. Laws 3464, 3466 (current version at Tex. Occ. Code Ann. § 201.1525

(West Supp. 2009) (mandating that the Board “adopt rules clarifying what activities are included

within the scope of practice of chiropractic and what activities are outside of that scope”)). While

Texas Mutual challenges the Board’s scope-of-practice interpretation as a misconstruction of the

statute and the rule, Texas Mutual nonetheless recognizes that this was, indeed, the TBCE’s

interpretation at relevant times.

               Although Texas Mutual now attempts to challenge the TBCE’s opinions interpreting

the scope of chiropractic practice to include needle EMG as improper rulemaking, Texas Mutual

failed to preserve the issue for appeal by not properly raising it before the trial court. As presented

to us, this medical fee dispute, to which the TBCE is not a party, is not the proper forum for

challenging these opinions. See Tex. Gov’t Code Ann. § 2001.038(a) (West 2008) (authorizing

declaratory judgment action to challenge the validity or applicability of an agency rule), (c)

(requiring that the state agency be made a party to the action).

               Because the Commission’s interpretation of the 1996 MFG to require it to defer to

the TBCE’s interpretation of the chiropractic scope of practice is not plainly erroneous or

inconsistent with that rule, and because it is undisputed that the TBCE at relevant times has opined



                                                  6
that the scope of chiropractic practice includes needle EMG, we find no error in the district court’s

judgment affirming the Commission’s order requiring Texas Mutual to reimburse Dr. Stelzer for the

needle EMG procedure. We affirm the district court’s judgment.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: January 13, 2010




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