DECISION AND ORDER

This case is a dispute over whether Southwestern Bell Telephone Company (Respondent) should reimburse Highpoint Pharmacy (Petitioner) for the cost of filling prescriptions for two ointments. The medical necessity of the ointments is the only issue to be resolved. The Administrative Law Judge (ALJ) concludes that Provider did not meet its burden of proving the medications were medically necessary. Therefore, Provider is not entitled to reimbursement for the cost of the ointments.

I. NOTICE, JURISDICTION, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction or notice. Those issues are set out only in the Findings of Fact and Conclusions of Law below.

II. STATEMENT OF THE CASE

Administrative Law Judge Suzanne Formby Marshall convened a hearing in this case on August 9, 2005, at the State Office of Administrative Hearings (SOAH), William Clements State Office Building, Austin, Texas. Petitioner appeared through Nicky Otts, pharmacist. Respondent appeared through its attorney, Charlotte Salter. The record closed the same day.

III. DISCUSSION

A. INTRODUCTION

Claimant worked as _____ for Southwestern Bell Telephone. She sustained a compensable injury on ___, as a result of progressive pain, tingling and numbness in her wrists and arms. She was diagnosed with bilateral carpal tunnel syndrome, as well as cervical disc disease. The dispute in this case involves prescriptions for two topical ointments intended to treat Claimant’s pain resulting from carpal tunnel syndrome. Dr. Jacob Rosenstein, Claimant’s treating physician, prescribed the ointments. One ointment consisted of a compounded medication containing Clonidine, Gabapentin and Ketamine. The other ointment was a mixture of Lidocaine and aloe vera and was intended to relieve pain and “increase the electrical stimulation threshold.” Petitioner’s Ex.B, p. 1.

Highpoint Pharmacy (Petitioner) compounded the medications and dispensed them to Claimant. The dates of service are from April 18, 2003, through December 8, 2003. Carrier denied reimbursement on the basis that the ointments were not medically necessary.

Provider filed a timely request for medical dispute resolution. The Independent Review Organization (IRO) agreed with Carrier that the ointment was not medically necessary. On July 8, 2004, the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (TWCC) issued its Findings and Decision, adopting the decision of the IRO. On August 10, 2004, Provider filed a timely request for a hearing before SOAH.

B. EVIDENCE AND ARGUMENTS

Petitioner

Petitioner is the dispensing pharmacy of the medications in issue. Petitioner submitted billing medical records, and copies of medical articles into evidence as Petitioner’s Exhibits B, C, and D. Nicky Otts testified on behalf of Petitioner. Mr. Otts discussed the three ingredients in one of the ointments, i.e., Clonidine, Gabapentin and Ketamine, and observed that all three are used to treat or relieve pain. Mr. Otts testified that the use of compounded medications is common when other remedies have been exhausted. Mr. Otts stated that Claimant had been extensively treated for pain with no significant relief prior to the use of the ointments. According to Mr. Otts, the topical application of these medications offered the advantage of minimizing side effects that would normally result from oral administration. Claimant, as noted by Mr. Otts, is diabetic and was unable to take some oral medications that might normally be prescribed for her. Mr. Otts noted that the medications were first prescribed in April 2003 and were refilled two to three times, indicating that the Claimant must have experienced pain relief from the ointments.

With regard to the use of the Lidocaine/aloe vera mixture, Mr. Otts stated that the medical literature supported the efficacy of a topical application for neuropathic pain. He also claimed that the refill of the prescription indicates effectiveness. Consequently, he contended that the prescriptions were medically reasonable and necessary to relieve the effects of Claimant’s compensable injury.

Respondent

Respondent introduced into evidence Respondent’s Exhibit 1, containing 504 pages of medical records. Respondent contended that Claimant’s carpal tunnel syndrome was identified almost immediately and she was given extensive treatment, including chiropractic treatment, injections, and a neuro-stimulator unit for her condition. Respondent noted that the medical records are devoid of any discussion about why the ointments were prescribed or refilled, the effects of the medications on Claimant’s pain level, or whether Claimant even used them. Respondent noted that Claimant received the ointment on April 18, 2003, and refilled the prescription on April 24, 2003 and May 2, 2003. However, as of September 10, 2003, Claimant reported that her pain was intolerable, yet the doctor did not prescribe a refill of the ointment for the pain. Respondent makes the inference that the ointment was not effective in relieving Claimant’s pain because it was not continued.

Respondent also notes that ultimately Claimant had carpal tunnel surgery and this indicates the futility of the ointment treatment. Even after the surgery, Claimant continued to experience severe pain. According to Respondent, the documentation does not support medical necessity because it fails to identify the specific purpose for which the prescriptions were intended, Claimant’s use of the medications, and the effects of the medications on Claimant’s pain levels. Respondent seeks a decision denying reimbursement for the cost of the ointments.

C. ANALYSIS AND CONCLUSION

Having considered the evidence in this case, the ALJ finds there is insufficient evidence to support the use of the ointments for the compensable injury in this case. The evidence presented by Petitioner did not consist of sufficient information from the treating physician to justify their use. Although Petitioner argued that continued use equated to effectiveness, the ALJ cannot reach this conclusion based on the evidence, particularly since Claimant’s actual use of the ointments is unknown, the time period for their use was minimal, the medications were discontinued, and ultimately, surgery was necessary. There is no medical record indicating whether or not Claimant’s pain levels actually decreased as a result of using the ointments.

The treating physician’s medical necessity letters are conclusory and are merely descriptive of what the ointments could be used for, not a specific discussion of why they were appropriate for use in Claimant’s situation. Further, there is no information in the records related to why the use of the Lidocaine/aloe-vera compound was necessary to increase the electrical stimulation threshold. Based on the evidence presented, Petitioner failed to meet its burden of proving that the medications were medically reasonable and necessary for this patient.

IV. FINDINGS OF FACT

1. Claimant sustained work-related injuries to her neck and bilateral upper extremities, including her wrists and arms, on ___.
2. At the time of the compensable injuries, Claimant’s employer, Southwestern Bell Telephone Company (Respondent) carried workers’ compensation insurance coverage through Liberty Mutual Insurance Company.
3. From April 18, 2003, through May 2, 2003, Claimant’s treating physician prescribed a topical ointment to be applied to her wrists to treat pain related to Claimant’s carpal tunnel syndrome.
4. The topical ointment referred to in Finding of Fact No. 3 consisted of a compound derived from Clonidine, Gabepentin, and Ketamine.
5. On November 20, 2003, and December 8, 2003, Claimant’s treating physician prescribed a topical ointment comprised of Lidocaine and aloe vera for pain and to increase the electrical stimulation threshold.
6. Highpoint Pharmacy (Provider) compounded the ointments at issue and dispensed it to Claimant.
7. Claimant’s treating physician failed to provide a medical rationale to support the decision to prescribe the ointments in issue.
8. Claimant’s treating physician failed to document Claimant’s actual use of the ointments, the results experienced by Claimant from using the ointments, and the reason the ointments were discontinued.
9. Carrier declined to reimburse Provider for the medications because it considered them to be medically unnecessary.
10. Provider filed a timely request for medical dispute resolution.
11. An Independent Review Organization (IRO) agreed with Carrier that the prescription medications at issue were not medically necessary.
12. On July 8, 2004, the Medical Review Division of the Texas Worker’s Compensation Commission issued its Findings and Decision, adopting the IRO decision.
13. On August 10, 2004, Provider filed a timely request for a hearing before the State Office of Administrative Hearings.
14. Notice of the hearing was sent to all parties on September 8, 2004.
15. The notice 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 sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
16. The hearing was held August 9, 2005. Provider and Carrier participated in the hearing. The record closed the same day.
17. While there was evidence that the compounded ointments contained ingredients that have been used to treat pain, there is no objective medical evidence that supports the necessity of the two compounded ointments to specifically treat Claimant’s condition of carpal tunnel syndrome.

V. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction over this matter pursuant to the Texas Workers’ Compensation Act (Act), Tex. Lab. Code Ann. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to § 413.031(k) of the Act and Tex. Gov’t Code Ann. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and the Commission’s rules, 28 TAC § 133.308(u).
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
5. Provider had the burden of proof in this proceeding. 28 TAC § 148.21(h); Tex. Lab. Code Ann. § 413.031.
6. In accordance with the above Findings of Fact, the disputed medications were not medically reasonable and necessary to treat Claimant’s compensable injury.
7. Carrier should not reimburse Provider for the medications in dispute.

ORDER

It is ORDERED that Highpoint Pharmacy is not entitled to reimbursement from Southwestern Bell Telephone Company for the ointment provided to Claimant from April 18, 2003, through December 8, 2003.

Signed October 10, 2005.

SUZANNE FORMBY MARSHALL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS