DECISION AND ORDER

Zurich American Insurance Company (Carrier), seeks reversal of an order by an Independent Review Organization (IRO) finding certain medications were medically necessary and granting reimbursement (of approximately $443) to Highpoint Pharmacy (Provider) for supplying the drugs to the injured worker, ___ (Claimant), between June 7 and December 2, 2002. This decision affirms the IRO opinion that the drugs were medically necessary.

I. PROCEDURAL HISTORY

The Administrative Law Judge (ALJ), Barbara C. Marquardt, convened a hearing on the appeal on November 19, 2003. Nicky Otts, pharmacist, appeared telephonically and represented Provider; the Carrier was represented by attorney Steven M. Tipton. The hearing concluded, and the record closed on the same date.

II. DISCUSSION

A. Background

On ____, the Claimant was approximately 48 years old, when he tripped and fell while carrying an angle iron, heard a “pop” sound in his lower back, and injured his neck and low back. The Claimant had a prior lumbar laminectomy and fusion in 1993.

The Claimant’s diagnoses have included: displacement of a lumbar intervertebral disc without myelopathy, compression of the spinal nerve root, and displacement of the cervical intervertebral disc without myelopathy. He was originally treated by a chiropractor with complaints of pain in his neck, lower back, numbness in his feet, and headaches. As of October 9, 2002, the Claimant was unable to work. He had low back pain and occasional bilateral leg pain every day, rated at between 7 and 10 out of 10.

B. The Carrier’s Peer Review Doctors

Dr. Randi Baculi, a neurologist, opined in May 2002 that the Claimant had suffered only soft tissue injuries and that he was not a surgical candidate. He concluded that the Claimant should have ended treatment six months from the date of injury. In Dr. Baculi’s opinion, BUT/ASA/CAFF would only have been reasonable for between two and seven days after the injury, because it is a

narcotic. Similarly, he opined that the Carisoprodol should only have been used for between two and seven days after the injury.

The other peer review doctor, Dr. Bauer, who is board-certified in orthopedic surgery, stated in February 2003 that another (unnamed) narcotic medication should be substituted for the BUT/ASA/CAFF. He felt it was no longer reasonable to use Carisoprodol, as there was no indication of its efficacy that far after the injury and the surgery.

Records from the Claimant’s Treating Doctor

The following four drugs are at issue:

• Carisoprodol (Soma) – a skeletal muscle relaxant that relieves painful spasms;
• Promethazine -an antinausea medication (nausea being commonly associated with headaches and various medications);
• BUT/ASA/CAFF – a combination of codeine, aspirin, and caffeine, that helps relieve pain due to muscle contraction headaches; and
• Neurontin – an anti-convulsant agent used to help relieve neuropathic pain.

A CT scan of the lumbar spine in September 2002 showed central disc protrusion at L4-5 with degeneration of the L4-5 disc. There was also left foraminal stenosis at L4-5.

On October 9, 2002, Dr. Jacob Rosenstein, a neurosurgeon, noted the Claimant’s pain was 7/10. He felt the Claimant would likely require an L4-5 decompression and fusion. As of November 6, 2002, Dr. Rosenstein found the Claimant would need surgery for his lumbar stenosis and that he had not reached maximum medical improvement. He described the Claimant’s problems as a central disc protrusion at L4-5, with degeneration at the L4-5 disc. There was L4-5 stenosis, severe disc space narrowing at L4-5 and L5-S1, and L3-4 foraminal protrusion.

When the Claimant saw Dr. Rosenstein on November 13, 2002, he was still complaining of lower back pain, with radiation to the left leg. His pain levels were at 8/10 for the leg, and 9/10 for the neck and bilateral arms. Dr. Rosenstein explained that the medications were necessary for the ongoing treatment of the patient, because they enabled him to better achieve and maintain his participation in activities of daily living. He noted that a CT scan of the lumbar spine showed the Claimant’s fusion was solid at L5-S1, but there was movement at L4-5. Thus, he concluded the Claimant will likely require an L4-5 decompression and fusion.

As of January 22, 2003, Dr. Rosenstein found the Claimant was symptomatic with lumbar radiculopathy.

D. Analysis

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. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes

recovery; or (3) enhances the ability to return to or retain employment.^[1]

The evidence in this case is sparse. However, on balance, the peer review records are much less persuasive than those submitted by Dr. Rosenstein, the treating neurosurgeon. In fact, the ALJ finds Dr. Baculi’s review irrelevant, because it was done before Dr. Rosenstein found the Claimant’s spinal problems were severe and would likely require a surgical repair. The other peer review physician, Dr. Bauer, implied that another narcotic medication might be necessary, but he rejected BUT/ASA/CAFF without explanation.

The only evidence in the record is that the Claimant has been unable to work since his injury in ___. The records document that there is movement at L4-5, and that he has L4-5 stenosis and severe disc space narrowing at L4-5 and L5-S1. Apparently, conservative treatment has not resulted in healing, and Dr. Rosenstein plans to do a surgical repair consisting of an L4-5 decompression and fusion. Meanwhile, Dr. Rosenstein has documented that the Claimant has lower back pain, neck pain leading to headaches, and radicular pain into the lower left extremity. The pain is at a high level, ranging between 7 and 10. While the medications at issue have not enabled the Claimant to return to work, Dr. Rosenstein states they help him to maintain his activities of daily living. For those reasons, the medications are medically necessary, and the Provider should be reimbursed for them.

III. FINDINGS OF FACT

1. On ____, ___ (Claimant) was approximately 48 years old, when he tripped and fell while carrying an angle iron, heard a “pop” sound in his lower back, and injured his neck and low back. The Claimant had a prior lumbar laminectomy and fusion in 1993.
2. The Claimant was originally treated by a chiropractor with complaints of pain in his neck, lower back, numbness in his feet, and headaches.
3. A CT scan of the lumbar spine in September 2002 showed central disc protrusion at L4-5 with degeneration of the L4-5 disc. There was also left foraminal stenosis at L4-5. The Claimant’s fusion was solid at L5-S1, but there was movement at L4-5.
4. The Claimant’s treating physician, Dr. Jacob Rosenstein, a neurosurgeon, has determined that the Claimant has not reached maximum medical improvement, and that he will need surgery B an L4-5 decompression and fusion.
5. The Claimant has been unable to return to work. He has lower back pain, neck pain leading to headaches, and radicular pain into the lower left extremity. The pain is at a high level, ranging between 7 and 10.
6. Dr. Rosenstein prescribed the medications, because they have enabled the Claimant to better achieve and maintain his participation in activities of daily living. They work as follows: (a) Carisoprodol B a skeletal muscle relaxant, relieves painful spasms; (b) BUT/ASA/CAFF B a combination of codeine, aspirin, and caffeine, helps relieve pain due to muscle contraction
7. headaches; (c) Neurontin B an anti-convulsant agent helps relieve radicular pain; and (d) Promethazine B a medication that relieves nausea commonly associated with headaches and the Claimant’s medications.
8. Based on the foregoing, the medications referenced in Finding 6 are medically necessary, and the Provider, Highpoint Pharmacy, is entitled to reimbursement for supplying them to the Claimant between June 7 and December 2, 2002.

IV. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. CodeAnn. § 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 § 413.031 of the Act and Tex. Gov’t Code ch. 2003.
3. An employee who sustains a compensable injury is entitled to health care that relieves the effects naturally resulting from the injury and enhances the ability to return to or retain employment, pursuant to Act § 408.021.
4. Based on Finding 7, the medications were medically necessary and permitted by§408.021 of the Act.

ORDER

IT IS THEREFORE, ORDERED that Zurich American Insurance Company reimburse Highpoint Pharmacy for the medications it provided to ___ between June 7 and December 2, 2002.

Issued this 7th day of January 2004.

BARBARA C. MARQUARDT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Tex. Lab. Code Ann. ‘408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann. ‘401.011(19).↑