Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
April 23, 2002
Retrospective Medical Necessity


April 23, 2002



Highpoint Pharmacy ( Petitioner) seeks reimbursement from Insurance Company of the State of Pennsylvania (Carrier) for medications provided to Claimant, ___., in 2001. The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) denied reimbursement for the charges ($674.03), and Petitioner appealed the decision.

The Administrative Law Judge (ALJ) concludes Petitioner did not meet its burden of proving the medications were medically necessary under the Commission Spine Treatment Guideline (STG). Therefore, the claim should be denied.


The evidence in this case consisted of the 43-page certified record (C.R.) of the MRD proceeding. According to the certified record, Claimant sustained a compensable back injury on______, and subsequently underwent a lumbar fusion. On February 21, 2001, Jacob Rosenstein, the neurosurgeon who performed the fusion in May 1995, prescribed three medications to treat Claimant continued symptoms.[1]

The Carrier refused to pay for the medications based on a peer review conducted by neurosurgeon Brian O’Grady in October 1999. Dr. O’Grady questioned the need for continued use of Class II narcotic medications, such as Tylenol # 4, more than four years after the injury, noting that such medications would be appropriate soon after the surgery, but not for prolonged use. He opined that Claimant may have developed a psychological or physiological addiction to the medications. He further questioned why a neurosurgeon who had supposedly performed a successful fusion was still treating Claimant. Based on Dr. O’Grady assessment, the Carrier determined the medications were not medically necessary.

Pursuant to 28 Tex. Admin. Code (TAC) §148.21(h), Petitioner has the burden of proof in this case. The only evidence it offered to support medical necessity for the medications was Dr. Rosenstein letter of February 21, 2001. It also argued Dr. O’Grady opinion should not be dispositive because he did not review all the records prior to offering his opinion. (See C.R. p. 38).

The Commission STG., at 28 TAC §134.1001 (e)(2)(A)(ii) and (vii), states that treatment of a work-related injury must be, among other things, “evaluated for effectiveness and modified based on clinical changes” and “consistent in demonstrating ongoing progress in the recovery process by appropriate reevaluation of the treatment.” Petitioner evidence did not prove that use of the prescribed medications had been evaluated and shown to be effective for Claimant’ condition. Similarly, nothing was presented to show the medications were helping Claimant recover from his symptoms. Dr. Rosenstein letter appears to state, in a conclusory manner, that the medications were necessary to allow Claimant to live with his chronic low back pain. Nothing in the record shows that other treatments had been tried and rejected so as to indicate the medications were the most reasonable or effective treatment available to Claimant. Therefore, the ALJ concludes Petitioner did not prove medical necessity for the medications it provided.


  1. On______, Claimant__, employed by_____, suffered a compensable injury to his back.
  2. _______ had workers’ compensation coverage with the Insurance Company of the State of Pennsylvania (Carrier) at the time of the injury.
  3. In May 1995, Dr. Jacob Rosenstein performed an L4-5 spinal fusion on Claimant. After the fusion, Claimant suffered from chronic low back pain and continued to be treated by Dr. Rosenstein.
  4. Dr. Rosenstein treated Claimant chronic condition with medications.
  5. In February 2001, Dr. Rosenstein prescribed Hydrocodone, Vanadom, and Etodolac to relieve Claimant symptoms.
  6. The evidence failed to show the medication treatment plan had been evaluated to determine its effectiveness nor whether any changes had been made based on Claimant response to the medications.
  7. The evidence did not indicate the medications improved Claimant condition or symptoms, or that they allowed him to return to or continue to work.
  8. Petitioner submitted the charges, amounting to $674.03, for the prescription medications it provided Claimant between January 10, 2001, and February 16, 2001, to the Carrier.
  9. The Carrier denied payment, indicating the medications were not medically necessary.
  10. Petitioner requested dispute resolution by the Texas Workers’ Compensation Medical Review Division (MRD) on May 9, 2001, seeking reimbursement for the medications.
  11. On October 9, 2001, the MRD issued a decision denying reimbursement because Petitioner had not substantiated the medical necessity for the medications provided Claimant.
  12. On October 29, 2001, Petitioner appealed the MRD decision.
  13. On November 30, 2001, the Commission sent a notice of hearing to the parties. The notice contained a statement of the time and place 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.
  14. The hearing was held on March 27, 2002, before the State Office of Administrative Hearings. Randy Burgett appeared on behalf of Petitioner, and Attorney Robert Josey appeared for the Carrier. The Commission did not appear.


  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann§413.031.
  2. 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 § 413.031(d) of the Act; Tex. Gov’t Code Ann. ch. 2003 (Vernon 2000), and 28 Tex. Admin. Code (TAC) chs. 148 and 149.
  3. Petitioner timely appealed the MRD decision, pursuant to 28 TAC §148.3.
  4. The notice of hearing sent by the Commission complied with the requirements of Tex. Gov’t Code §2001.052 and of 28 TAC §48.4(b).
  5. Pursuant to §413.031 of the Act and 28 TAC §148.21(h) and (i), Petitioner had the burden of proving by a preponderance of the evidence that it should prevail in this matter.
  6. Section 408.021 of the Act provides that health care providers shall bill carriers only for treatments and services that are medically necessary to treat the compensable injury.
  7. Pursuant 28 TAC§134.1001 (e)(2)(A)(ii) and (vii), Petitioner was required to show that the medication treatment, among other things, had been “evaluated for effectiveness and modified based on clinical changes” and “consistent in demonstrating ongoing progress in the recovery process by appropriate re-evaluation of the treatment.”
  8. Petitioner failed to show the medication treatment provided was appropriate treatment for Claimant more than seven years after the original injury and six years after the fusion surgery, because it failed to show the treatment had been evaluated for effectiveness and had been modified based on clinical changes, if any, and that the treatment was “consistent in demonstrating ongoing progress in the recovery process by appropriate reevaluation of the treatment.”
  9. Based upon the foregoing Findings of Fact and Conclusions of Law, Petitioner request for reimbursement should be denied.


It is hereby ordered that Petitioner Highpoint Pharmacy claim is denied, and it is not entitled to reimbursement.

Signed this 23rd day of April 2002.

Administrative Law Judge

  1. Dr. Rosenstein’s letter (C.R. p. 14) reads as follows:
  2. Patient,___., is under my care for an on-the-job injury on_______. He is status post L4-5 lumbar fusion. He has chronic low back pain. He has been treated conservatively with medications. On 2/9/01 and 2/6/01 he was prescribed Hydrocodone 10/500, Vanadom, and Etodolac. These were reasonable and medically necessary for the treatment of the patient’s injuries as a direct result of his on-the-job injury on______. Hydrocodone is an analgesic,Vanadom is a muscle relaxant, and Etodolac is an anti-inflammatory. All three of these are necessary to treat his continued symptomatology.

End of Document