Leagle.com reports here  on a legal decision in a lawsuit between TEXAS MUTUAL INSURANCE COMPANY, Appellant, and MICHAEL M. STELZER, D.C. AND TEXAS WORKERS' COMPENSATION COMMISSION, Appellees.

The ruling, filed January 13, 2010, gives the course of events in this case, which are excerpted here.

"The issue presented in this administrative appeal is whether the Texas Workers' Compensation Commission, 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."

"...On May 16, 2003, appellee Michael M. Stelzer, D.C., performed a "needle EMG" 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)..."

Texas Mutual's reasoning was that "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 . . . ."

"The dispute was submitted to the Commission, where it was reviewed by an Independent Review Organization (IRO)...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...."

"Texas Mutual requested a hearing before the State Office of Administrative Hearings (SOAH)...[and] 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," 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 the scope of practice for chiropractors...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..." 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. 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. 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 Further, Texas Mutual 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 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.... 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 chiropractor has received proper training in electrodiagnosis. The legislature has vested the Board with authority to determine scope-of-practice issues.... 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....

"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 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.