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February 12, 2002


February 12, 2002


This case is a dispute over the decision by the Insurance Company of the State of Pennsylvania (Carrier) to not reimburse EZ Rx Pharmacies (Petitioner) $191.43 for medication provided to____, an injured employee.[1]

The Administrative Law Judge (ALJ) finds that Carrier is liable to reimburse Petitioner for the medication provided. Specifically, the ALJ notes that Carrier denied reimbursement because the physician prescribing the medication was not M.M.’s treating physician.[2] On review of the evidence, the ALJ concludes that M.M.’s treating physician, Dr. David Nelson, referred M.M. to Dr. David M. Hirsch, the physician prescribing the medication in issue.[3] Under Tex. Lab. Code §408.021(c), all non-emergency health care must be provided by the employee’s treating doctor. However, under Tex. Lab. Code§408.022(e)(1) and 28 Tex. Admin. Code §§ 133.3 and 133.4, the treating doctor may refer an injured employee to another physician for additional treatment. Where another physician provides care pursuant to the treating physician’s referral, the Carrier cannot refuse to reimburse the services simply on the basis that the referral physician is not the designated treating doctor. Therefore, and as set forth below in the Findings of Fact and Conclusions of Law, Petitioner’s request for reimbursement is granted and Carrier is to reimburse Petitioner the sum of $191.43.

I. Findings of Fact

  1. ____ suffered an injury on or about______. At all times relevant herein, the Insurance Company of the State of Pennsylvania (Carrier) was the workers’ compensation insurance carrier for____.
  2. As part of her treatment, ____ was seen by Dr. David Nelson as her treating physician. Dr. Nelson referred____ to Dr. David M. Hirsch for additional treatment.
  3. As part of his treatment of____, Dr. Hirsch prescribed the medications Ambien, Baclofen, and Etodolac for____ on June 16, 2000, and June 21, 2000. Petitioner provided the medications to ____ pursuant to Dr. Hirsch’s prescription, and billed Carrier the sums of $74.92, $22.73, and $96.00 respectively for the three medications. The MAR is $73.92, $22.51, and $95.00 respectively for the medications.
  4. Carrier denied reimbursement on the basis that Dr. Hirsch was not the treating doctor, and advised Petitioner of such in writing.
  5. Petitioner a filed a Request for Medical Dispute Resolution with the Commission, seeking reimbursement for the medications.
  6. On May 2, 2001, the Commission’s Medical Review Division (MRD) determined that Petitioner was not entitled to reimbursement of any amount, concluding that there was no evidence that Dr. Hirsch was_____.’s treating doctor.
  7. On May 7, 2001, Petitioner filed a request for hearing before the State Office of Administrative Hearings (SOAH).
  8. Notice of the hearing was sent on June 4, 2001.
  9. 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.
  10. The hearing was held February 6, 2002, with Administrative Law Judge Craig R. Bennett presiding and representatives of the Carrier and Petitioner participating. The hearing was adjourned and the record closed the same day.

II. Conclusions of Law

  1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act (the Act), Tex. Lab. Code Ann. ch. 401 et seq.
  2. SOAH has jurisdiction over 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.
  3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §.
  4. Petitioner has the burden of proof in this matter. 28 Tex. Admin. Code §148.21(h).
  5. Under the Act and the Commission’s rules, ____ is entitled to obtain treatment from a physician other than her treating physician, provided her treating physician refers herto theother physician. Tex. Lab. Code § 408.022(e)(1) and 28 Tex. Admin. Code §§ 133.3.
  6. Under Tex. Lab. Code § 408.027, Carrier is required to provide an explanation of the basis for its denial of benefits. As applied to this case, the basis for Carrier’s denial is limited to that stated in Finding of Fact No. 4 above.
  7. Petitioner has met its burden of proving it was entitled to reimbursement for the disputed charges.
  8. Petitioner’s request for reimbursement in the amount of $191.43 should be granted.


IT IS, THEREFORE, ORDERED that the request by EZ Rx Pharmacies for reimbursement in the amount of $191.43 from the Insurance Company of the State of Pennsylvania (Carrier) for medications provided to____, an injured employee, is GRANTED. Carrier is ordered to pay that sum to EZ Rx Pharmacies pursuant to this order.

Signed February 12th, 2002.


Administrative Law Judge

  1. The amount billed for the medications in issue was $193.65, but the maximum allowable reimbursement (MAR) under the Texas Workers’ Compensation Commission’s rules is $191.43.
  2. Under the circumstances of this case, the ALJ finds that Carrier may not raise new grounds for denial of reimbursement other than those raised in the explanation of benefits provided to the physician.
  3. Carrier points out that the Medical Review Division hearing officer could not determine that Dr. Hirsch was the treating doctor from reviewing the Commission’s records. The issue, though, is not whether Dr. Hirsch was the treating doctor (all parties concede he was not), but whether he treated ___ on referral from the treating doctor. Further, the hearing officer’s review, apparently pursued on her own initiative, is not proper evidence in this proceeding.
End of Document