DECISION AND ORDER
EZ Rx Pharmacies (Petitioner) sought review of a decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) denying it reimbursement for prescriptions it filled between April 12 and May 9, 2000, on behalf of J.E. (Claimant). The MRD concluded that the Petitioner had failed to establish that the medications were medically necessary for treatment of Claimant’s compensable injury. In a decision issued May 21, 2000, the MRD declined to order Reliance National Indemnity Company (Carrier) to reimburse Petitioner the $416.86 it had claimed for filling prescriptions for four medications. Based on the evidence and applicable law, the Administrative Law Judge (Judge) concluded that the MRD ruled correctly and that the Petitioner is not entitled to reimbursement.
The hearing was held on March 28, 2002. The record closed May 16, 2002, in order to receive additional exhibits regarding the compensability case on this Claimant.
Given the unresolved compensability issue, the parties should consider this decision as contingent on the outcome of any final agency determination on compensability. The Judge notes that in reimbursement cases before SOAH in which the compensability of the underlying injury is under review, the presiding judge may either issue an advisory or decline to proceed until the underlying issue is determined. It is this Judge’s usual practice to do the latter. However, as this case turns on Petitioner’s failure to meet its burden of proof, it is unlikely that a ruling on compensability favorable to the Claimant would change the outcome here. The Claimant has failed to pursue its procedural remedies by setting a benefits conference, so the matter appears to be, for all practical purposes, at rest.
II. Factual Background
On___________, Claimant injured his back while mopping a floor in the course of his work as a janitor in El Paso, Texas. Claimant was treated conservatively, with physical therapy, chiropractic adjustments and medication. (TWCC Exh. 1, Pp. 86-91). Throughout 2000 and the early part of 2001, Claimant continued to report pain in his arms, leg, and shoulder, as well as headache pain, attributing that pain to his injury on______. During this period, Claimant was seen by a number of doctors and underwent a variety of tests. (TWCC Exh. 1, P. 27). The Carrier’s peer reviewer, Dr. Timothy Fahey, D.C., ultimately concluded that no treatment to the lumbar spine provided more than two months after the injury was warranted. (TWCC Exh. 1, Pp. 15-24)
At some unknown time before February 2000, Dr. Bryan Drazner, M.D., of Dallas, Texas, began treating Claimant. When Dr. Drazner undertook Claimant’s care is unknown. However, it appears to have been shortly before the events involved in this case since Dr. Fahey’s review, prepared on March 24, 2000, does not mention treatment by Dr. Drazner. Between February and May, 2000, Dr. Drazner prescribed several medications for Claimant Celebrex, Vanacet, Migquin and But/Ace/Caff. Those prescriptions were all filled by Petitioner, who then sought reimbursement for them from the Carrier. The Carrier reimbursed Petitioner for prescriptions it filled in February 2000, but declined to reimburse prescriptions for later dates of service. The Petitioner did not present any evidence that the Carrier had reimbursed prescriptions for Claimant any earlier than February 2000.
On May 27 and June 19, 2000, the Carrier filed Notices of Medical Payment Dispute, declining to reimburse Petitioner for the prescriptions on the basis that they were charges unrelated to the compensable injury and constituted unnecessary medical treatment. (TWCC Exh. 1, Pp. 72 and 74). On January 18, 2001, Petitioner resubmitted the claim, sending in a one-paragraph letter from Dr. Drazner to support their medical necessity. The Carrier denied the resubmitted claim, which denial Petitioner then appealed to the MRD.
Petitioner’s representative stated that, at the time they filled prescriptions for Claimant in April and May, 2000, no staff member at EZ Rx Pharmacies knew that the compensability of Claimant’s injury had been disputed. The Carrier confirmed that none of the TWCC-21 forms that it had filed would have been sent to a third-party provider such as a pharmacy, and that the first notice of a dispute furnished specifically to Petitioner would have been the denial letter issued on May 27, 2000.
The Petitioner failed to meet his burden of proof to show that the MRD erred in their decision in regard to these prescriptions. The Carrier was able to document a long-standing and thorough investigation into the potential causes of Claimant’s ongoing pain and symptoms, which in the end did not show a causative link to the back sprain that occurred in_______. In his letter, Dr. Drazner assumed the causal link between the injury and the symptoms. Given Claimant’s medical history, treating that link as a given lacks credibility. At the hearing, the Petitioner chose to rely on Dr. Drazner’s letter.
In sum, the Judge concludes Dr. Drazner’s letter was conclusory and lacked sufficient specificity to overcome the detailed medical evidence presented by the Carrier so was insufficient to support Petitioner’s claim.
Further, the fact that the Carrier had reimbursed Petitioner for the disputed prescriptions for one month does not show a long-standing practice that may have created in the Petitioner any expectation that the Carrier had fully reviewed and approved the use of the medication. Given that the Carrier had since December 1999 opposed long-term, expanded care for Claimant’s back sprain, the approval of the February prescription seems to have been a fluke, so, in the end, did not weigh in Petitioner’s favor.
IV. Findings of Fact
- On_________, (Claimant) injured his lower back while performing janitorial duties at his place of employment in El Paso, Texas. Treatment for that injury was compensable under the Tex. Labor Code ' 413.015 (the Act).
- Claimant was diagnosed with a mild sprain to his lumbar spine.
- On December 2, 1999, Reliance National Indemnity Company (Respondent) disputed compensability for treatment for any body part other than the lumbar spine. On April 4, 2000, the Carrier also disputed compensability of additional care for the lumbar spine. The Commission has not issued a decision on the compensability of Claimant’s injury.
- Between February and May, 2000, the Claimant was under the care of Dr. Bryan S. Drazner, M.D., of Dallas, Texas. During those months, Dr. Drazner prescribed Celebrex, Vanacet, Migquin and But/Ace/Caff for Claimant’s headaches, and lower back and leg pain.
- EZ Rx Pharmacies (Petitioner) filled prescriptions written for Claimant by Dr. Drazner between February and May, 2000, for the four medications listed in Finding No. 4.
- The Carrier reimbursed Petitioner for prescriptions it filled for dates of service in February 2000.
- On May 27 and June 19, 2000, the Carrier denied reimbursement for prescriptions Petitioner filled for dates of service in March through May, 2000, on the grounds that the prescribed drugs were not medically necessary to treat Claimant’s compensable injury, and were charges unrelated to the compensable injury.
- On January 18, 2001, the Petitioner resubmitted its claim, providing a one-paragraph letter from Dr. Drazner to support the claim. The Carrier denied the resubmitted claim.
- On March 19, 2001, the Petitioner timely appealed the Carrier’s denial of reimbursement to the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) for the following dates of service: April 12, 14 and 25, and May 9 and 24, 2000.
- On May 21, 2001, the MRD declined to order the Carrier to reimburse the Provider for any date of service in April and May, 2000, on the basis that the documentation did not demonstrate how medications were necessary and effective in treating the compensable injury, as required by the Spine Treatment Guideline (STG), 28 Tex. Admin. Code § 134.1001(e)(2)(A), and by the Pharmaceutical Fee Guideline, found within the Medical Fee Guideline 28 Tex. Admin. Code '134.201.
- The Petitioner filed a timely request for a hearing at the State Office of Administrative Hearings (SOAH) on the MRD decision.
- On July 7, 2001, the Commission issued a notice of hearing which included the date, time, and location of the hearing, and the applicable statutes under which the hearing would be conducted. The notice stated additional facts on the nature of the matters asserted would be issued within 10 days of the hearing. The Commission timely filed statements of matters asserted, and had consolidated the two cases for hearing.
- SOAH Administrative Law Judge Cassandra Church convened a hearing on March 28, 2002, and the record closed on May 16, 2002, to receive additional evidence.
V. Conclusions of Law
- The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code § 413.031.
- SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a Decision and Order, pursuant to Tex. Labor Code § 413.031 and Tex. Gov’t Code ch. 2003.
- The notice of hearing issued by the Commission conformed to the requirements of Tex. Gov’t Code § 2001.052 in that it 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 section of the statutes and rules involved; and a short plain statement of the matters asserted.
- The petitioning party, EZ Rx Pharmacies (Petitioner), has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Tex. Labor Code § 413.031.
- The Petitioner failed to meet its burden of proof to show that the MRD had incorrectly applied the documentation provisions of the Medical Fee Guideline (MFG), 28 Tex. Admin. Code § 134.201, specifically, the Pharmaceutical Fee Guideline, and the Spine Treatment Guideline, 28 Tex. Admin. Code § 134.1001, in determining that Petitioner had not demonstrated that the medications were medically necessary under terms of the Act to treat Claimant’s compensable injury.
IT IS HEREBY ORDERED that Reliance National Indemnity Company has no obligation to reimburse EZ Rx Pharmacies for prescriptions it filled on Claimant’s behalf on the dates of service of April 12, 14 and 25, and May 9 and 24, 2000.
Signed July 15, 2002.
STATE OFFICE OF ADMINISTRATIVE HEARINGS
CASSANDRA J. CHURCH
Administrative Law Judge
- The prescriptions at issue in this case involved medications for body parts other than the spine, and for the spine some 14-16 months post-injury. The Carrier disputed eligibility of both care for other body areas, and timing of lumbar spine care. The Commission has never ruled on either compensability challenge, so any decision in this case would be advisory. §§ 408.027 and 413.031.(d), Tex. Labor Code Ann.; Henry v. Dillard Department Store, Inc., 70 S.W.3d 808 (Texas 2002); Cigna Ins. Co. of Texas v. Killion, 50 S.W.3d 17 (Civ. App.BAmarillo 2001).↑
- The Carrier filed notices of refused/disputed claim (TWCC Form No. 21) on the following dates: December 2 and 7, 1999; January 22, April 4, 5 and 8, May 18 and October 2, 2000, and on February 19, 2001. The theme throughout the course of these notices is consistent; only Claimant’s lumbar spine was injured, and that injury was a minor strain. [The Judge notes that these notice dates are taken directly from the forms themselves. Order No. 3, reopening the record of this case to receive them, errs as to the dates.]↑
- The five dates of service in issue are April 12, 2000 (Celebrex, Vanacet and Migquin); April 14, 2000 (But/ACE/Caff); April 25, 2000 (But/ACE/Caff, Vanacet and Celebrex); May 9, 2000 (Celebrex, Vanacet and But/ACE/Caff); and May 24, 2000 (Vanacet and But/ACE/Caff).↑
- On January 4, 2001, Dr. Drazner stated he had prescribed these medications to treat Claimant’s lower back and leg pain, and severe headaches. (TWCC Exh. 1, P. 20). In his terse letter, Dr. Drazner does not specifically relate the leg and back pain, or the headaches, to the original injury, or directly answer any point raised in the lengthy medical reports that had been written about Claimant’s ongoing condition. Although written nearly a year after he issued the prescriptions, and in the context of a dispute before the MRD, Dr. Drazner did not reference any facts or circumstances regarding Claimant’s prior medical history. Nor did he mention when he began to treat Claimant, or whether he was still his treating physician at the time he prepared the letter.↑
- The MRD found that only claims for dates on April 12, 2000, and after were timely filed, so those are the only dates of service at issue in this case.↑