DECISION AND ORDER

This case involves a dispute over the decision by Ace Insurance Company of Texas (Carrier) to not reimburse EZ Rx Pharmacies (Pharmacy) for a prescription the Pharmacy filled for a workers’ compensation claimant (the claimant). The amount in dispute is $1,364.65 and the Carrier has appealed the decision of the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (Commission), which ordered reimbursement. In this decision, the Administrative Law Judge (ALJ) concludes the prescribed medications were not medically necessary treatment for the claimant’s compensable injury and, therefore, Carrier is not liable to reimburse the Pharmacy for such medication.

I. Background Facts

Claimant developed upper right extremity pain in_____, pursuant to her job assembling jeans at a _____ plant. In February 1994, she began receiving ongoing treatment for her injury. She underwent physical therapy and work hardening treatment at Angelo Physical Therapy, at which time it was noted that she was a symptom magnifier and did not give maximum effort during testing tasks. In December 1994, Dr. Thomas Lowe (her treating physician at the time) found claimant to have reached maximum medical improvement (MMI). Claimant was then seen by Dr. William Pollan, who concluded on February 24, 1995, that claimant was at MMI, with no impairment.

In 1996, claimant began seeing Dr. Salvador Baylan for her injury. On December 19, 1996, Dr. Baylan issued a report agreeing that claimant was at MMI, but concluding that claimant had a 14% impairment rating based on the nature of her injury, her range of motion tests, and an MRI that revealed minor disc bulges in her back. Dr. Pollan was asked to review Dr. Baylan’s report and supporting documents and render a follow-up opinion. In his follow-up, Dr. Pollan disagreed with Dr. Baylan’s impairment conclusions, noting that claimant’s most recent MRI was unchanged from her previous one, with no abnormalities indicated (Dr. Pollan pointed out that 40% of the general population had disc bulges similar to those reflected on claimant’s MRI). Further, Dr. Pollan noted that claimant’s unwillingness to perform functional capacity evaluation testing appropriately rendered the results invalid, and all of claimant’s complaints were subjective, with no objective test results to support them. Based on this, Dr. Pollan maintained his earlier opinion that claimant had reached MMI with no impairment.

Claimant continued to be seen by Dr. Baylan for complaints of chronic pain. In 2001, Dr. Avrom Simon performed a peer review analysis of claimant’s records and determined that claimant’s initial work-related injury was likely due to overuse syndrome/tendinitis in the upper right extremity from repetitive work duties. Dr. Simon concluded that there was no data to support structural musculoskeletal problems related to claimant’s back. Dr. Simon pointed out that claimant’s repetitive work-related motions would have ended in November 1997 when _____ closed its facility and claimant’s job duties ended, and Dr. Simon concluded that claimant’s symptoms would have resolved within a month after claimant’s repetitive duties ended. Therefore, Dr. Simon concluded that no additional treatment was needed for claimant’s ______injury.

Dr. Baylan continued to treat claimant from April to October of 2001. In May and June 2001, Dr. Baylan prescribed Paxil, Cataflam, Aloe Vera Liniment, Darvocet, Topamax and Capsaicin for claimant. The prescriptions were filled by the Pharmacy, which then billed Carrier for the medications. Carrier denied reimbursement, asserting the medications were not medically necessary treatment for claimant’s compensable injury. After conducting medical dispute resolution, MRD ordered Carrier to reimburse the Pharmacy for the prescriptions. Carrier then appealed.

II. Analysis

The sole issue in this case is whether the numerous prescription drugs provided to claimant in May and June 2001 were medically necessary to treat her work-related repetitive-motion injury of 1994. After considering the evidence, the ALJ concludes that they were not.

The Pharmacy argues that the medical documentation, and particularly the statement of medical necessity submitted by Dr. Baylan, establish the medical necessity of the prescribed medications. Further, the Pharmacy asserts it acted in good faith in filling the prescriptions and, because of its role as an independent third party provider, it is unable to dispute the physician’s prognosis and determination of medical necessity. It argues that it is innocently caught in the middle between the treating physician’s medical judgment and the Carrier’s determination that the prescribed medication was not medically necessary. Further, the Pharmacy contends that the Carrier’s peer review reports were not provided to it, thereby hindering its efforts to prosecute its claim.

In response, Carrier simply argued that the only issue in this case is the medical necessity of the prescribed medications, and asserted the evidence in this case shows that the prescribed medications were not medically necessary for claimant’s injury of 1994.

The ALJ is persuaded by the evidence which shows that there is no medical necessity for the prescription drugs provided to the claimant in May and June of 2001. The medical tests did not reveal objective signs of a medical abnormality supporting the prescription drug therapy or any objective findings reflecting improvement in the patient. Furthermore, the record reflected no formal, detailed plan of treatment that might have proven useful in tracking the need for and effectiveness of Dr. Baylan’s therapy. In fact, the medical documentation strongly suggests any medical problems that might have arisen from claimant’s compensable injury would have been resolved long ago and, thus, did not justify the medications prescribed by Dr. Baylan.

The ALJ agrees with the Pharmacy’s contention that pharmaceutical providers inherently are disadvantaged in proceedings such as this, where they find themselves stuck between the treating physician, who has concluded the prescribed medications are medically necessary, and the carrier, who has concluded the medications are not medically necessary. In its position as the third party providing the means through which the doctor’s decisions are fulfilled, the Pharmacy simply follows the prescribing physician’s instructions when it appears they are prudent and reasonable. The Pharmacy argues that it cannot and does not make medical necessity decisions. Consequently, and unfortunately, the Pharmacy is placed in a distinctly disadvantageous position when attempting to collect for its services via the medical dispute resolution process, because its recovery depends on the correctness of the treating physician’s determination that the prescribed medications are medically necessary. There certainly is some inherent unfairness in this scenario. But despite this inherent unfairness, the law is also clear that injured workers are only entitled to treatment that is reasonable and necessary for their work-related injury, and carriers are generally only responsible for reimbursing reasonable and necessary medical care. Under the statutory scheme, the ALJ’s role is to determine whether or not the treatment provided is medically necessary based on the evidence presented. In this case, the preponderance of the evidence supports the conclusion that Dr. Baylan’s prescription of various medications for claimant was not medically necessary treatment of claimant’s compensable injury of_____. Consequently, the Pharmacy’s claim must be denied.

III. Findings of Fact

1. A worker (claimant) suffered compensable injuries to her upper right extremity in______ while performing repetitive motion job duties for her employer, ______.
2. At the time of claimant’s injuries, Ace Insurance Company of Texas (Carrier) was the workers’ compensation insurance carrier for claimant’s employer.
3. In February 1994, claimant began receiving ongoing treatment for her injury. She underwent physical therapy and work hardening treatment at Angelo Physical Therapy, at which time it was noted that she was a symptom magnifier and did not give maximum effort during testing tasks.
4. By February 1995, claimant reached maximum medical improvement, with no impairment.
5. In 1996, claimant’s MRI was unchanged from her previous one, with no abnormalities indicated.
6. Forty percent of the general population has disc bulges similar to those reflected on claimant’s MRI.
7. Claimant’s unwillingness to perform FCE testing appropriately rendered the results invalid, and all of claimant’s complaints were subjective, with no objective test results to support them.
8. Claimant’s initial work-related injury was likely due to overuse syndrome/tendinitis in the upper right extremity from repetitive work duties. There is no data to support structural musculoskeletal problems related to claimant’s back.
9. Claimant’s repetitive work-related motions ended in November 1997 when _______closed its facility and claimant’s job duties ended, and claimant’s symptoms should have resolved within a month after claimant’s repetitive duties ended.
10. In May and June 2001, Dr. Baylan prescribed Paxil, Cataflam, Aloe Vera Liniment, Darvocet, Topamax and Capsaicin for claimant. The prescriptions were filled by EZ Rx Pharmacies (Pharmacy), which then billed Carrier the sum of $1,568.91 for the medications.
11. Carrier denied reimbursement, asserting the medications were not medically necessary treatment for claimant’s compensable injury.
12. On September 27, 2001, the Pharmacy filed a request for medical dispute resolution with the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission.
13. On May 10, 2002, after conducting medical dispute resolution, MRD ordered Carrier to reimburse the Pharmacy the sum of $1,364.00 plus accrued interest.
14. On May 23, 2002, Carrier filed a request for hearing before the State Office of Administrative Hearings (SOAH).
15. Notice of the hearing was sent on June 13, 2002.
16. A hearing was conducted by SOAH, before Administrative Law Judge Craig R. Bennett, on September 18, 2002. Representatives of Carrier and the Pharmacy appeared and participated. The hearing adjourned and the record closed the same day.
17. The medications prescribed by Dr. Baylan in May and June 2001 were not medically necessary treatment of claimant’s compensable injury of 1994.

IV. Conclusions of Law

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Labor Code Ann. §413.031 (Vernon Supp. 2002).
2. SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to §413.031 of the Act and Tex. Gov’t Code Ann. ch. 2003 (Vernon 2002).
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 (Vernon 2002) and 28 Tex. Admin. Code ch. 148.
4. Carrier has the burden of proof in this matter. 28 TAC §148.21(h).
5. Carrier established, by a preponderance of the evidence, that the dispensed drugs were not medically necessary for the treatment of claimant.
6. The Pharmacy’s request for reimbursement should be denied.

ORDER

IT IS ORDERED that EZ Rx Pharmacies is not entitled to reimbursement from Ace Insurance Company of Texas for medications dispensed to claimant on May 8, 2001 and June 4, 2001.

Signed this 2^nd day of October, 2002.

CRAIG R. BENNETT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS