DECISION AND ORDER

___ (Claimant) challenges the decision by an Independent Review Organization (IRO) denying her request to reimburse her for prescription medications provided to her from December 23, 2003, until March 9, 2004, in the amount of $155.60. Travelers Indemnity Company of Connecticut (Carrier) denied the request as not medically necessary and the IRO upheld that decision. The Administrative Law Judge (ALJ) agrees with the IRO and concludes that Claimant’s request for reimbursement from Carrier should be and is hereby denied.

I.PROCEDURAL HISTORY, NOTICE, AND JURISDICTION

ALJ Penny A. Wilkov convened a hearing in this case on February 9, 2005, at the State Office of Administrative Hearings (SOAH), William P. Clements State Office Building, 300 West 15th Street, Austin, Texas. The Claimant represented herself, with the assistance of Commission Ombudsman, Juan Mireles. The Carrier was represented by counsel, Jeanne Schafer. The parties did not contest notice or jurisdiction. The record closed on the day of the hearing.

II.DISCUSSION

A. Background

Claimant sustained a work-related back injury on ___, when she fell out of her desk chair while attempting to sit down and fell on her left side. Claimant complained of pain in the neck, right shoulder, and lower back. Claimant has been diagnosed with mild bulging at C4-5 and C5-6 lateralizing to the left, without significant nerve root impingement.^[1] Claimant’s history of treatments have included thoracic surgery, injections, physical therapy, and medications along with diagnostic procedures including x-rays and MRIs. Claimant has not returned to work since the ___ injury.

Carrier denied payment as medically unnecessary, based upon a peer review, the following medications prescribed by Claimant’s physician, Everton A. Edmondson, M.D., and filled by the pharmacy: Propoxyphene(Darvocet), Lexapro, Ambien, andCyclobenzaprine(Flexiril). In the

Independent Review Determination, the IRO reviewer, a board-certified orthopedic surgeon, found that the medications were not medically necessary and stated:

There is no documentation of exhaustion of conservative measures of treatment including by not limited to over the counter nonsteroidal anti-inflammatory medications, physical therapy modalities (ice/heat, dynamic spinal stabilization/McKenzie), and bracing.^[2]

B. Evidence and Argument

Claimant

Claimant presented her medical records and called her treating physician, Dr. Edmondson, a pain medicine specialist, as a witness. During the time period of disputed services, December 23, 2003, until March 9, 2004, Dr. Edmondson prescribed Darvocet for pain, Lexapro for depression,Ambien for insomnia, and Flexiril as a muscle relaxant. Claimant argued that the medications were medically necessary for several reasons.

Claimant contends that the injuries were fairly extensive including injury of her neck, shoulder, and lower back culminating in thoracic surgery for a right-side nerve root compression. Her treatment plan, devised by Dr. Edmondson, has included physical therapy and nerve blocks but primarily, medication to control pain. Claimant also contends that she has not fully recovered since she has persistent back pain, radicular pain, and secondary depression brought on by the change in her life. According to Dr. Edmondson, Claimant has permanent impairment from her nerve injury and she is in the maintenance phase of her care. The purpose of the medications, Dr. Edmondson testified, is to keep Claimant as functional as possible, despite the persistent pain.

Claimant argued that the medications were medically reasonable and necessary to treat various aspects of her injury. The Darvocet was prescribed to alleviate Claimant’s chronic pain on an “as needed” basis. Dr. Edmondson testified that he did not see any signs of abuse by Claimant with this medication. Lexapro was given to treat secondary depression, a common side-effect from the chronic pain and the change in her lifestyle. Ambien was prescribed to treat insomnia related to chronic pain. The Flexiril was given as a muscle relaxant but only as an occossional prescription because the medication decreases in efficacy over time.

Lastly, Claimant disputes the conclusion of the IRO that Claimant should have been weaned off of all medications since the pain persists on a daily basis and only medication can give her a reasonable quality of life.

Carrier

Carrier disputes that the medications were medically necessary. Carrier presented Claimant’s medical records and pointed to the peer review conducted by J. Martin Barrash, M.D., a neurosurgeon, and the report of the IRO reviewer.

Carrier points out that Dr. Barrash, who had previously examined Claimant on two occasions in 1997 and 1998, saw no need to continue the medication. Dr. Barrash, in his July 23, 2003, letter states that “(t)he soft tissue injury which she experienced years ago, certainly has resolved,” and goes on to say that “(b)asically, I believe this patient had a soft tissue injury from which she has recovered.”^[3] He based his opinion on his examination which showed that Claimant’s cervical range of motion was completely normal, upper extremities were normal, and Claimant had no lumbar or cervical spasm. He stated that he saw no reason why Claimant could not return to work.

Carrier also argues that the IRO decision was an accurate assessment of the medical necessity for the disputed medications. The IRO reviewer concluded that the Darvocet, a narcotic analgesic, is generally indicated for no more than a four to eight-week period for the control of acute pain. Claimant should have then been weaned off the use of this narcotic medication. The IRO reviewer also concluded that the antidepressive, Lexapro, is for the treatment of major depressive disorders. Here, the IRO reviewer failed to see in the medical records that Claimant had any indication of a major depressive disorder. The Flexiril, according to the IRO reviewer, is normally used for two or three weeks for the relief of muscle spasms associated with painful musculoskeletal conditions. Thereafter, Claimant could use ice and heat modalities to achieve the same effect. Further, the IRO reviewer found that the use of Ambien, a sedative hypnotic, is routinely prescribed for the short term treatment of insomnia. Here, the IRO reviewer concludes that, without documentation of a clinical work up for insomnia or primary psychiatric illnesses, Ambien use is not indicated. Finally, Carrier agrees with the IRO reviewer’s assessment that Claimant would benefit from over-the-counter medications and physical therapy modalities including ice and heat.

Lastly, Carrier points to a letter from Dr. Edmondson, dated January 13, 2004, wherein Dr. Edmondson agreed that the Flexiril was no longer needed, and that only the Darvocet for pain and Ambien for insomnia were necessary.

C. Applicable Law

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. 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. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19).

D. Analysisand Conclusion

The testimony and evidence established that the medications prescribed in this case,Propoxyphene(Darvocet) for pain, Lexapro for depression, Ambien for insomnia, and Cyclobenzaprine (Flexiril) as a muscle relaxant, during the time period in issue, December 23, 2003, until March 9, 2004, were not reasonable and necessary.

The medical records, peer review, and IRO determination all support the evidence that Claimant’s continued use of the medications was not serving to promote her recovery, enhance her ability to return to work, or relieve the effects resulting from the injury. Rather, the medical evidence

substantiates that Claimant has made a significant recovery from her injury and should be weaned off the medications, with the help of over-the-counter medications and physical therapy, so that she can return to full functionality.

In conclusion, the ALJ finds that Claimant did not meet its burden of proof that the medications prescribed from December 23, 2003, until March 9, 2004, were medically necessary.

III. FINDINGS OF FACT

1. ___ (Claimant) sustained a work-related back injury on ___, when she fell out of her desk chair while attempting to sit down and fell on her left side.
2. Claimant has not returned to work since her injury.
3. Claimant has been diagnosed with mild bulging at C4-5 and C5-6 lateralizing to the left, without significant nerve root impingement.
4. Claimant’s history of treatments have included thoracic surgery, injections, physical therapy, and medications along with diagnostic procedures including x-rays and MRIs.
5. FromDecember 23, 2003, until March 9, 2004, Everton A. Edmondson, M.D., prescribed Propoxyphene(Darvocet) for pain, Lexapro for depression, Ambien for insomnia, and Cyclobenzaprine (Flexiril) as a muscle relaxant.
6. Claimant paid for the prescriptions from Dr. Edmondson in the amount of $155.60, and requested reimbursement for the medications.
7. Travelers Indemnity Company of Connecticut (Carrier) declined to reimburse the medications, as medically unnecessary, based upon a peer review.
8. Based on Carrier’s denial, Claimant sought medical dispute resolution through the Texas Workers’ Compensation Commission (Commission). The matter was referred to an Independent Review Organization (IRO) designated by the Commission for the review process. The IRO determined that the medications were not medically necessary treatment for Claimant’s compensable injury.
9. Claimant then requested a hearing before the State Office of Administrative Hearings. Administrative Law Judge (ALJ) Penny A. Wilkov conducted a hearing on February 9, 2005, at the State Office of Administrative Hearings (SOAH), William P. Clements State Office Building, 300 West 15th Street, Austin, Texas. Claimant represented herself, with the assistance of Commission Ombudsman, Juan Mireles. Carrier was represented by counsel, Jeanne Schafer.
10. The medical records demonstrate that Claimant’s cervical range of motion was normal, her upper extremities were normal, and she had no lumbar or cervical spasm present.
11. Over- the-counter medications and physical therapy modalities, including ice and heat, would have returned Claimant to functionality.
12. FromDecember 23, 2003, until March 9, 2004, the medications prescribed in this case were not reasonable and necessary to promote her recovery, enhance her ability to return to work, or relieve the effects resulting from the injury.

IV. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to the Texas Workers’ Compensation Act, specifically Tex. Labor Code Ann. § 413.031(k), and Tex. Gov’t Code Ann. ch. 2003.
2. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and 28 Tex. Admin. Code ch. 148.
3. The request for a hearing was timely made pursuant to 28 Tex. Admin. Code § 148.3.
4. Adequate and timely notice of the hearing was provided according to Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
5. Claimant has the burden of proof in this matter. 28 Tex. Admin. Code §§ 148.21(h) and 133.308(w).
6. Claimant failed to establish, by a preponderance of the evidence, that the disputed services were medically reasonable and necessary under Tex. Labor Code Ann. §408.021(a).

ORDER

THEREFORE IT IS ORDERED that ___ is not entitled to reimbursement from Travelers Indemnity Company of Connecticut for the Propoxyphene, Lexapro, Ambien, and Cyclobenzaprine, provided to Claimant between December 23, 2003, until March 9, 2004.

Signed March 23, 2005.

PENNY A. WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Respondent’s Exhibit 1, page 12 (January 13, 2001, MRI of the Cervical Spine).↑
2. Petitioner’s Exhibit 2, page 2 (Forte, June 17, 2004).↑
3. Respondent’s Exhibit 1, pages 8-10.↑