The short answer is maybe, eventually, when your administrative appelas are exhausted. Assuming there is a compensable injury and the request for surgery was properly requested by your provider. The first step is to have your provider obtain preauthorization for the surgery by the network or the carrier. If your claim accepted as compensable and if the surgery was preauthorized, then you must look to whether your surgery was performed within the deadlines to the portion of your body that has been deemed compensable.
Unfortunately carriers fight tooth and nail against spinal surgeries because not only is the procedure very expensive, the carrier must pay income benefits while the worker is recovering. Sorry it seems you have a tough situation on your hands. The problem is that each action may result in a different action. Lets say the IC does its usual two step of delay and deny. First assuming a back injury the IC say it accepts a sprain/strain but you have cadua equina syndrome and need immediate surgery because you cannot even walk. Under emergency situations you are entitled to go to the ER for surgery but that does not guarantee the IC will pay for your surgery, you could be left holding the hospital bill.
Lets change the situation and say you hurt your back and providers treat you in accordance with AMA guides, meaning that first you receive physical therapy, then injections, then when all other treatment has failed your provider asks for pre-authorization and it is initially approved. I have seen cases where the surgeon requests the injured worker to give blood before surgery. Then the next day the injured worker arrives at the hospital, and is prepared for the surgery by the nursing staff. When a person gets "prepped" for surgery, they must undergo several humiliating procedures. Then suddenly and without warning, the surgeon comes in saying the surgery has been cancelled because the carrier has decided to contest the surgery. There is a scene at the hospital just as you see in the movies when a warden comes rushing just before an execution to say there has been a stay.
Unbelievable, but true, and on more than just a few occasions. After a person gets mentally prepared for the surgery, only to have it cancelled at the last moment. The IC essentially cancelled the surgery because of its refusal to pay for it. They can do that cruel act without much repercussion because the Texas Supreme Court decided (see Ruttinger v. TMI) there is no "bad faith" in Texas with respect to workers compensation. That is such a difficult position for injured workers to be placed in because once the IC denies the surgery the injured worker will have to practically beg for the invasive procedure that no one really wants to have. It is similar to a situation where a person needs to have a tooth pulled, but just the thought of it being pulled is painful. The insurance carrier finds someone else to blame, such as the health care provider, saying they could have gone forward with the surgery!
I had a case recently where I was representing the injured worker (IW). The carrier denied the claim in its entirety. Meanwhile we had a rare orthopedic surgeon who was not worried about being paid up-front so the IW was able to have the surgery that was needed. I advised the IW to obtain a prescription for nursing services for her care after discharge from the hospital while she was at home recovering.
The law requires carriers to pay for reasonable and necessary medical care so we asked the doctor about nursing services and he agreed to write the prescription for nursing services. The IW's spouse cared for the IW performing nursing type services and even though the spouse was not a nurse we were able to recover more than $25,000 for NURSING SERVICES from the carrier. Another point on the nursing service, you are sure to love, a lawyer cannot take fees from that portion of the recovery because it is medical benefits. I fought for the nursing services knowing I would not be paid for that because of the way the carrier had treated the injured worker. My client deserved every penny. I wish you good luck.
So with respect to your question, in the end, "can
you sue if the carrier refuses to pay for surgery"? As I stated you will first have to exhaust
your administrative remedies. After that you absolutely can sue but you will
have a whale of a time finding a good lawyer to help you, especially if your
TIBs and IIBs are exhausted. The reason is that, except in limited situations,
attorneys can only get paid from your income benefits. If the benefit are paid
out you will not be able to find lawyer and worse you cannot even pay a lawyer
out of your own pocket to help you. The WC Act prohibits lawyers from accepting
money from injured workers. I find it patently unfair and strange the IC have
no such restriction on hiring lawyers so the IC will hire very fine lawyers to
go against you in court. It all seems just a little bit skewed against injured
workers to me.
