DECISION AND ORDER

I. DISCUSSION

Highpoint Pharmacy (Petitioner) requested a hearing before the State Office of Administrative Hearings (SOAH) following a decision of the Texas Workers’ Compensation Commission (Commission or TWCC) acting through Forté, an Independent Review Organization (IRO). The Commission’s Order denied Petitioner’s request for reimbursement of medications for ___ (Claimant).

This decision grants the relief requested by Petitioner and approves its request for reimbursement of 1142.27 for medications for Claimant as reasonable and necessary.

A hearing was convened on December 9, 2004. Nicky Otts appeared by telephone for Petitioner, and Steven M. Tipton appeared as counsel for Insurance Company of the State of Pennsylvania (Respondent or Carrier). Rick Taylor, D.O., a board certified anaesthesiologist, testified by telephone on behalf of Petitioner. There were no contested issues of notice or jurisdiction.The record was allowed to remain open for filing of post-hearing briefs by December 15, 2004. On that day, Respondent filed a brief, and the record was closed.

Claimant sustained a work-related injury to his back on ___. Claimant was seen at an emergency room and was prescribed pain medications for sharp pain in his back and legs. On July 28, 1993, Claimant had a CT scan that revealed multiple level disc disease and was referred by a physician to Jacob Rosenstein, M.D., a board certified neurologist, for diagnosis and treatment. Dr. Rosenstein prescribed narcotic and non-narcotic pain relievers to control Claimant’s pain and recommended physical therapy. Dr. Rosenstein noted that if physical therapy failed to improve Claimant’s condition, then a discectomy should be performed. A lumbar CT scan of Claimant revealed a disc herniation at L3-4 and L4-5 with lumbar and cervical disc displacement. On March 4, 1994, Dr. Rosenstein performed a hemilaminectomy, a medial facetectomy, a forminatomy, and a microdiscectomy.

Claimant continued to experience lumbar and leg pain and was prescribed additional rounds of physical therapy. Claimant could not undergo work hardening and began to use a cane. On June 27, 1994, Dr. Rosenstein saw Claimant on an emergency basis, and on August 11, 1994, Claimant was admitted to the hospital for facet injections. By October 10, 1994,

George Wharton, M.D., examined Claimant and concluded that he had reached maximum medical

improvement with an impairment rating of 30%.

Over the next five years, Claimant continued to receive physical therapy and facet injections, as well as non-injectable prescription medications for pain relief and other conditions associated with Claimant’s injury. On April 6, 2001, Claimant was evaluated by Benzel C. MacMaster, M.D., who concluded that maintenance of Claimant’s condition through the use of drugs, including narcotics, was appropriate, given the absence of evidence of abuse. Claimant continued to have facet injections and occasional rounds of physical therapy through 2003.

Between February 24, 2003, and May 5, 2003, Petitioner filled prescriptions for Claimant, and Petitioner sought reimbursement in the amount of $1,142.27 from Respondent. In its Explanations of Benefits, Respondent denied the claims using the standard payment exception code “AV”: “Aunnecessary medical treatment and/or service per peer review; documentation attached.” On November 13, 2003, Petitioner requested reconsideration of Respondent’s denial, and Respondent denied the claims again using the same standard payment exception code.

Carrier provided a written report by Stanley Hite, M.D., who had reviewed Claimant’s medical records. Dr. Hite expressed his opinion that the effects of Claimant’s injury resolved in June 1994 after the surgery performed on March 4, 1994, and that the need for medications was not related to Claimant’s compensable injury of 1993.

Carrier also reviewed the IRO’s recommendation of April 26, 2004, that Claimant should be weaned from the use of prescription narcotic medication, that the use of Vioxx was not indicated except in the documented presence of a peptic ulcer or gastroesophageal reflux disease, that the use of Trazadone was not necessary except to treat significant clinical depression, and that the use of Phenergan should not be required if Claimant were weaned from the use of the other medications.

Dr. Taylor testified at the hearing that he had reviewed the Claimant’s medical records and prior reviews of the Claimant’s medical records. Dr. Taylor concluded that Claimant had objective manifestations of pain existing on an intractable basis over long periods of time. Dr. Taylor testified that the management of Claimant’s pain through medication was reasonable and necessary, including the use of Lidocaine, hydrocodone, Vioxx, and promethazine (Phenergan) to alleviate nausea, cyclobenzaprine for muscle relaxation, and Trazadone for the promotion of deep sleep and treatment of mild depression. He explained that the use of opioids over ten or more years is appropriate if a patient experiences legitimate pain, if the medication provides relief, and if there is no evidence of abuse or addiction. Each of those criteria is present with this Claimant.

Dr. Rosenstein provided written criticisms of Dr. Hite’s conclusions, based on Dr. Rosenstein’s treatment of Claimant over a period of more than ten years. Dr. Taylor concurred with Dr. Rosenstein.

At the conclusion of the hearing, Carrier made an oral motion for summary disposition on the grounds that: (1) Petitioner failed to show that the extent of the injury was related to the treatment for

which reimbursement is sought, and (2) Carrier had filed a TWCC-21 form^[1] by which Carrier

challenged whether it had accepted responsibility for coverage of the injury. In Carrier’s post-hearing brief, Carrier argued that issues regarding adjudication of compensability are not within the jurisdiction of SOAH. Carrier showed that Carrier has raised the issue of compensability with TWCC by filing a TWCC-21 form.

In defense of its position, Carrier points to the provisions of 28 Tex. Admin. Code § 124.2. The ALJ has reviewed carefully subsections (a) through (n) of the rule and finds nothing in the rule that deprives SOAH of jurisdiction in this case. Carrier also points to the rulings in 453-04-4176.M2, 453-04-4654.M5, and 453-04-5978.M2, previous SOAH dockets in which the same issue was addressed. However, in 453-04-04-4176.M2, the matter was on appeal in district court at the time that the carrier filed a motion to dismiss and the provider did not oppose the motion to dismiss. In 453-04-4654.M5, the carrier filed a motion to abate and the provider did not file a response to the motion. In 453-04-04-5978.M2, the self-insured filed a motion to abate and the respondent agreed with the motion. Each of these cases is distinguishable on its facts from the present docket. In this matter, the motion to dismiss was not raised until the time of the hearing, the carrier’s challenge to compensability has never been addressed by the Commission, and Respondent opposes the motion to dismiss.

The ALJ does not know the Commission’s reason for not issuing an order on Respondent’s challenge of the compensability issue. However, it is clear that nearly ten months passed between Respondent’s filing of the TWCC-21 form and the Commission’s referral of this case to SOAH for claim dispute resolution. In that period of time, the Commission apparently made the determination to deny Respondent’s challenge to the compensability challenge. The ALJ reaches that conclusion since the Commission took so many administrative steps that are consistent with a denial of the TWCC-21 pleading: sending the case to the MRD for claim determination, sending the case to an IRO, adopting the IRO’s determination, and then referring the case to SOAH.^[2]

As a separate matter, Petitioner noted that the Carrier denied each of the claims using a standard exception code “V.” Petitioner argued that the Carrier failed to deny the claims based on standard exception code “E” (“entitlement, non-compensable”). Petitioner asserted that if the Carrier had used the “E” exception code then the Carrier would not have been raising a new basis for denial of the claim for the first time at the hearing. Tex. Labor Code § 408.027(d).

In light of these various arguments, the ALJ denies the Carrier’s motion and addresses the merits of Petitioner’s claim.

Pursuant to the Texas Workers Compensation Act, an employee who has sustained a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Under the Act, the employee is specifically entitled to health care that cures or

relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Petitioner had the burden of proof in this proceeding.

In this instance, Dr. Taylor’s testimony, as supported by Dr. Rosenstein’s correspondence about the Claimant, providing convincing evidence that Petitioner’s condition was relieved by the administration of the prescribed medications. Although Dr. Hite reviewed the medical records, that review did not overcome Petitioner’s evidence. Petitioner proved by a preponderance of the evidence that the medications prescribed were reasonable and necessary for the treatment of Claimant’s condition.

II. FINDINGS OF FACT

1. ___ (Claimant) sustained a work-related injury on ___.
2. Claimant was seen at an emergency room and prescribed pain medications for sharp pain in his back and legs.
3. On July 28, 1993, Claimant had a CT scan that revealed multiple level disc disease and was referred by a physician to Jacob Rosenstein, M.D., a board certified neurologist, for diagnosis and treatment.
4. Dr. Rosenstein prescribed narcotic and non-narcotic pain relievers to control Claimant’s pain and recommended physical therapy.
5. A lumbar CT scan of Claimant revealed a disc herniation at L3-4 and L4-5 with lumbar and cervical disc displacement.
6. On March 4, 1994, Dr. Rosenstein performed a hemilaminectomy, a medial facetectomy, a forminotomy, and a microdiscectomy.
7. Following surgery, Claimant continued to experience lumbar and leg pain and was prescribed additional rounds of physical therapy.
8. Claimant could not undergo work hardening and began to use a cane.
9. On June 27, 1994, Dr. Rosenstein saw Claimant on an emergency basis, and on August 11, 1994, Claimant was admitted to the hospital for facet injections.
10. By October 10, 1994, George Wharton, M.D., examined Claimant and concluded that he had reached maximum medical improvement with an impairment rating of 30%.
11. Over the next five years, Claimant continued to receive physical therapy and facet injections, as well as non-injectable prescription medications for pain relief and other conditions associated with Claimant’s injury.
12. On April 6, 2001, Claimant was evaluated by Benzel C. MacMaster, M.D., who concluded that maintenance of Claimant’s condition through the use of drugs, including narcotics, was appropriate, given the absence of evidence of abuse.
13. Claimant continued to have facet injections and occasional rounds of physical therapy through 2003.
14. Between February 24, 2003, and May 5, 2003, Petitioner filled prescriptions for Claimant, and Petitioner sought reimbursement in the amount of $1,142.27 from Respondent.
15. Respondent denied the claims using the standard payment exception code “V”: “unnecessary medical treatment and/or service per peer review; documentation attached.”
16. On November 13, 2003, Petitioner requested reconsideration of Respondent’s denial, and Respondent denied the claims again using the same standard payment exception code.
17. By letter dated April 26, 2004, Forté, the independent review organization (IRO), concluded that the prescription medications were not medically necessary for the treatment of Claimant’s conditions.
18. Claimant had objective manifestations of pain existing on an intractable basis over long periods of time.
19. The management of Claimant’s pain through medication was reasonable and necessary, including the use of Lidocaine, hydrocodone, Vioxx, and promethazine (Phenergan) to alleviate nausea, cyclobenzaprine for muscle relaxation, and Trazadone for the promotion of deep sleep and treatment of mild depression.
20. The use of opioids over ten or more years is appropriate if a patient experiences legitimate pain, if the medication provides relief, and if there is no evidence of abuse or addiction.
21. Each of those criteria is present with this Claimant.
22. The IRO’s evaluation does not reflect substantive analysis in keeping with these criteria.
23. On May 24, 2004, Petitioner requested a hearing before the State Office of Administrative Hearings (SOAH).
24. By letter dated June 29, 2004, the Texas Workers’ Compensation Commission (Commission) issued a notice of hearing.
25. A hearing was convened by the Administrative Law Judge on December 9, 2004, in the hearing rooms of SOAH.
26. Nicky Otts represented Petitioner by telephone, and Steven M. Tipton appeared as counsel for Respondent.
27. There were no contested issues of notice or jurisdiction.
28. The administrative record closed on December 15, 2004.

III. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 413.031.
2. The IRO decision is deemed a Decision and Order of the Commission.
3. 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. Lab. Code Ann. § 413.031(d) and Tex. Gov’t. Code Ann. ch. 2003.
4. Petitioner timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code (TAC) §§ 102.7 and 148.3.
5. Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
6. Petitioner had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC §§ 148.21(h) and (i).
7. An employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. Tex. Lab. Code Ann. § 408.021(a).
8. Pursuant to Tex. Lab. Code Ann. §408.027(d), a party may not assert a new basis for denial of the claim for the first time at hearing.
9. The treatment of Claimant’s condition was medically necessary.

ORDER

THEREFOREIT IS ORDERED that Petitioner’s request for relief is GRANTED and that Carrier shall reimburse Petitioner the sum of $1,142.27, plus any applicable interest.

Signed January 5, 2005.

PAUL D. KEEPER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. A TWCC-21 form is a TWCC-promulgated administrative pleading by which a Carrier may challenge the Commission’s determination that the claim was the result of an employment-related injury. When a carrier files a TWCC-21, the request for an IRO is required to be held in abeyance until the dispute has been resolved by a final decision of the Commission. 28 Tex. Admin. Code § 133.308(f)(7). In this case, Respondent filed a TWCC-21 on September 17, 2003. According to the Carrier, the Commission never scheduled a hearing on the Carrier’s challenge. Instead, the Commission’s Medical Review Division (MRD) received the case on February 24, 2004, and referred the case to an IRO. On April 26, 2004, the IRO issued its determination, and on May 5, 2004, the MRD adopted the IRO’s determination as part of its decision. On May 24, 2004, the Commission referred the case to SOAH for an adjudication of the claim, at which time SOAH docketed the case for hearing on December 9, 2004.↑
2. In addition, more than six more months passed from the date on which the case was set for hearing before SOAH and the date on which the hearing was held, as scheduled. In that period of time, the Carrier filed no motion seeking SOAH’s abatement of the hearing, nor did the Carrier file in this docket copies of any motions or correspondence with the Commission in which the Carrier sought a hearing on it TWCC-21 filing or an order of withdrawal of the Commission’s referral of the case to SOAH.↑