DECISION AND ORDER

I. PROCEDURAL HISTORY

Petitioner Ez Rx Pharmacies (Provider) appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (TWCC) denying reimbursement from Respondent The University of Texas System (Carrier) for prescription medication provided to ____, Claimant. This decision orders the Carrier to reimburse the Provider $275.18 for the medication.

The Administrative Law Judge convened a hearing on February 13, 2002. The hearing was concluded and the record closed that date. The Petitioner appeared by telephone through its president, ______. The Carrier was represented Kyle Hensley, Assistant Attorney General.

II. EVIDENCE

The issue presented in this preceding is whether the Carrier should reimburse the Provider $275.18 plus interest for prescription medications consisting of Celebrex, an anti-inflammatory drug, Neurontin, a drug for treatment of neuropathic components of pain, and Vanacet, a drug prescribed for pain control. The Carrier argued that the Provider failed to establish medical necessity for the prescribed medications. The documentary record in this case consisted of the 40-page certified record of the MRD proceeding (Exh. 1). Additionally, Mr. _____ testified on behalf of the Petitioner.

The certified record contained a letter from the Claimant’s treating physician which stated that she was being treated for a__________, work injury. The Claimant was suffering from lower back pain which radiated to her lower extremities. She also complained of burning, numbness and tingling. The treating physician stated that the Claimant reported good pain control with the use of the prescribed medications. The letter was on the physician’s stationary, but was unsigned. (Exh. 1, p. 14).

The certified record also contained chart notes and a letter from the treating physician to the referring chiropractor. The chart notes documented the existence of ongoing pain and stiffness in the lower back. In his letter, the physician stated that the chiropractor should pursue a course of functional rehabilitation, and that the Claimant should continue on the medication regimen. (Exh. 1, pp. 35-38).

The certified record also contained an impairment rating dated August 16, 1995, which stated that the Claimant had reached MMI and suffered from discogenic spondyloarthropathy with right sided radiculopathy. The Claimant was assessed a 9% impairment rating. (Exh. 1, pp. 26-30)

A peer review contained in the certified record stated that any pain or spinal degeneration was attributed to the patient’s age and lifestyle. The report stated that further chiropractic treatment would not be compensable because there had been a gap in treatment from July 1998 to March 2000. The reviewing chiropractor stated that treatment should be billed under regular health care insurance, and the Claimant should exercise, stretch, and be more physically active. (Exh. 1, pp. 23-25)

Mr. ___, Petitioner’s president and a registered pharmacist, testified that a pharmacist does not determine medical necessity before filling prescriptions. When an injured worker presents a prescription to the pharmacy, the pharmacy verifies billing information and then determines whether the prescription seems reasonable for a work related injury. Mr. ___ testified that a prescription for birth control pills would not be filled for an injured worker because it would not be reasonable to do so for a workers’ compensation injury. In this case, he stated that it was reasonable to fill the prescriptions because the drugs could be used to treat a work related injury.

Mr. ___ concluded his testimony by stating that a pharmacy does not determine medical necessity for a prescription because only doctors can make medical decisions and judgments. He testified that he generally relies on prescriptions issued by a physician, but that he may call a physician about a prescription medication if the quantity or dosage seems out of the ordinary or if there will be a reaction from mixing prescribed medications. Additionally, he testified that he does not telephone the carrier for payment authorization prior to filling a prescription because the carrier will refuse to answer the question.

III. DISCUSSION

The Pharmaceutical Fee Guideline of the Texas Workers’ Compensation Commission (TWCC) in effect at the time the prescriptions were filled did not adequately address the issue presented in this case. The new TWCC rules pertaining to pharmaceutical services require a carrier to “request a statement of medical necessity from the prescribing doctor before denying reimbursement for prescription or over the counter medications.” Additionally, “[a]t the time the insurance carrier sends the request for a statement of medical necessity, the carrier shall send the provider of the pharmaceutical services and the employee a copy of the request.”^[1]The ALJ will attempt to reconcile the absence of direction in the old Pharmaceutical Fee Guideline with the new TWCC rules pertaining to pharmaceutical services.

The Petitioner accepted and filled prescriptions issued by the Claimant’s treating physician. Before filling them, the Petitioner determined the prescriptions for treatment of pain, inflammation, and neuropathic components seemed reasonable for an injured worker. The Petitioner could not either make a medical necessity determination or contact the Carrier for payment authorization before filling the prescriptions. The ALJ believes that the Petitioner used due diligence rather than careless indifference in determining that the treating physician had issued prescriptions based on medical necessity. Additionally, the Petitioner was without knowledge or the means of acquiring knowledge that the Carrier would contest medical necessity and not pay for medication prescribed by the treating physician.^[2]

Further, the Petitioner accepted and filled the prescriptions in good faith after concluding the treating physician had made the necessary finding of medical necessity. The ALJ believes that a prescription issued by a treating physician establishes a presumption of medical necessity which may be relied on by a pharmacy. A presumption is a conclusion of fact drawn from the exercise of natural reason and common experience^[3] and does not shift the burden of proof, but only shifts the burden of producing or going forward with the evidence. To rebut the presumption, the Carrier should show that the pharmacy did not act in good faith in accepting and filling prescriptions.^[4] The pharmacy filled the prescription only after making a determination that it was reasonable to do so based on its experience. In reviewing the evidence presented in this case, it is the duty of the trier of fact to determine reasonable presumptions of fact to be drawn from the established facts.^[5] It certainly was reasonable for the Provider to presume that the prescribed medications were medically necessary.

It is also noteworthy that the Petitioner did provide some evidence of medical necessity from the treating physician. As stated above, the Claimant’s physician stated that she reported good pain control with the medications.

Based on the evidence, the ALJ concludes that the Petitioner’s appeal should be granted.

IV. FINDINGS OF FACT

1. On________, ____ (Claimant) suffered a compensable injury to her back and lower extremities while mopping a floor.
2. Claimant’s injury is covered by worker’s compensation insurance provided for Claimant’s by the University of Texas System (Carrier).
3. Claimant’s treating physician prescribed Celebrex, an anti-inflammatory medication, Neurontin for treatment of neuropathic components of pain, and Vanacet for pain control to treat the injury.
4. Ez Rx Pharmacies (Petitioner) filled the prescriptions referred to in Finding of Fact No. 3.
5. It was reasonable for the Petitioner to fill anti-inflammatory and pain control prescriptions for treatment of an injured worker.
6. Prescriptions issued by a treating physician create a presumption of medical necessity.
7. There is no evidence that the Petitioner did not act in good faith in filling the prescriptions referred to in Finding of Fact No. 3.
8. The medications referred to in Finding of Fact No. 3 provided relief to the Claimant.
9. The Petitioner timely requested dispute resolution by the Texas Workers’ Compensation Commission Medical Review Division (MRD).
10. The MRD issued its findings and decision on September 19, 2001, concluding that the disputed expenses should not be paid, and the Petitioner timely appealed this decision.

V. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (TWCC) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code §413.031.
2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a Decision and Order, pursuant to Tex. Labor Code §413.031 and Tex. Gov’t Code ch. 2003.
3. The Notice of Hearing issued by TWCC conformed to the requirements of Tex. Gov’t Code §2001.052 in that it 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 section of the statutes and rules involved; and a short plain statement of the matters asserted.
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. Tex. Labor Code §408.021 (a).
5. The Petitioner has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Tex. Labor Code §413.031.
6. Based on Findings of Fact Nos. 3 – 8, the Petitioner proved by a preponderance of the evidence that Celebrex, Neurontin, and Vanacet were reasonably required and medically necessary to treat the Claimant.
7. The Carrier should reimburse the Petitioner for prescriptions filled to treat the Claimant in the amount of $275.18 plus interest.

ORDER

IT IS, THEREFORE, ORDERED that the University of Texas System reimburse EZ Rx Pharmacies for prescriptions filled in treating the Claimant in the amount of $275.18.

Issued this 22^nd day of March, 2002.

MICHAEL J. BORKLAND
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. 28 Tex. Admin. Code §134.502(e), effective January 3, 2002.↑
2. See Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834 (Tex. 1968). The Texas Supreme Court stated that a party claiming an estoppel must have used due diligence, rather than careless indifference.↑
3. 35 Tex. Jur. 3d Evidence §107; see Ice Service Co. v. Scruggs, 284 S.W.2d 185 (Tex. Civ. App.-Fort Worth 1955, writ ref’d).↑
4. 35 Tex. Jur. 3d Evidence §108.↑
5. Matthews v. Warren, 522 S.W.2d 569 (Tex. Civ. App.-Austin 1975, writ ref’d).↑