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At a Glance:
Title:
453-02-1087-m4
Date:
April 26, 2002
Status:
Medical Fees

453-02-1087-m4

April 26, 2002

DECISION AND ORDER

I. Procedural History

Petitioner EZ RX Pharmacies (Provider) appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (TWCC or Commission) denying reimbursement from Hartford Underwriters Insurance Company (Carrier) for prescription medication provided to____ (Claimant). This decision orders the Carrier to reimburse the Provider $932.32 for the medication.

The Administrative Law Judge (ALJ) convened a hearing on February 19, 2002. The hearing was concluded that day; the record was closed February 27, 2002. The Petitioner appeared by telephone through its president, Nicky Otts. The Carrier was represented by David L. Swanson. The Commission was represented by Jacqueline Harrison.

II. EVIDENCE

The issue presented in this proceeding is whether the Carrier should reimburse the Provider $932.32 plus interest for the prescription medication Viagra, a drug used to treat erectile dysfunction. The Carrier argued that the Provider failed to prove the relatedness of the services to the compensable injury (a lower back injury) and failed to establish medical necessity to treat the compensable injury. The MRD found that the medical documentation did not support a finding that the erectile dysfunction is related to the injury.

The Petitioner proffered a letter of medical necessity, dated November 12, 2002, from the treating physician, Dr. Fernando T. Avila.[1] Dr. Avila stated Claimant was referred to The Pain Management Centers of South Texas for management of chronic pain syndrome resulting from the compensable injury, with current diagnoses of lumbosacral radiculopathy/post laminectomy, low back pain, secondary myfascial pain, and situational depression. Dr. Avila stated that chronic pain or medications used to treat such pain can cause erectile dysfunction, but when lower back pain is involved, especially neuropathies involving S-2, S-3, and S-4, progressive radiculopathy can “logically be recognized as the primary factor contributing to erectile dysfunction . . .that [Viagra] works well in this patient lends more credence to neuropathy and radiculopathy as physical causes of dysfunction.”:[2] Dr. Avila further found the prescribed medication was essential to Claimant’s quality of life.

There are several references in the certified record indicating that Claimant has experienced a loss of sex drive or sexual dysfunction. On May 15, 2000, Viagra is listed as one of claimant’s medications; on May 16, 2000, a psychological progress report indicates sexual dysfunction; an August 14, 2000 report from Trinity Clinical Associates states Claimant is “likely to experience” a decreased interest in sex; and, on May 2, 2001, Dr. Avila prescribed Viagra in response to Claimant’s complaint of erectile dysfunction.[3] Additionally, the record shows that the Claimant suffered mid back pain radiating down into the right hip and leg and pain in both “lower extremities.”[4] Although, there is no direct evidence showing when Claimant began having a problem with erectile dysfunction, Dr. Avila stated that patients are often reluctant to disclose the existence of erectile dysfunction.[5]

III. DISCUSSION

Section 408.021 of the Texas Labor Code provides:

(a)An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that:

(1)cures or relieves the effects naturally resulting from the compensable injury;

(2)promotes recovery; or . . . .

The Petitioner submitted uncontroverted evidence by the treating physician that Claimant’s lumbar radiculopathy (the compensable injury) is the primary factor contributing to erectile dysfunction. According to the doctor, the fact that the prescribed Viagra “works well” for Claimant supports his diagnosis that neuropathy and radiculopathy are the physical causes of the dysfunction. The Carrier offered no evidence to refute the doctor’s opinion. Based on the evidence, the ALJ concludes that the erectile dysfunction naturally resulted from the compensable injury, and the prescription medication Viagra relieves the effects of erectile dysfunction.

The Carrier argued the documentation failed to meet the requirements of the Commission’s Spinal Treatment Guidelines. In particular, the Carrier contended that treatment administered to other body areas must be identified. The ALJ finds the letter of medical necessity adequately indicates the erectile dysfunction is related to the compensable injury and that the use of Viagra provides symptomatic relief.

The Carrier also argued the dysfunction of Claimant’s “reproductive organ” is not the result of the compensable injury-rather it is an injury to a different body structure or body part. Thus, any issue of compensability is outside the jurisdiction of the MRD and, therefore, the issue is not before the State Office of Administrative Hearings. The ALJ disagrees with the Carrier’s argument that this is an extent-of-injury case over which neither the MRD nor the SOAH ALJ has jurisdiction. Rather, like medication for pain or sleeplessness, which may have a physical or psychological causation related to the compensable injury, Claimant has obtained medication for a function that cannot be defined solely as “reproductive.” However, like a secondary or related symptom of pain or sleeplessness, the record evidence in this case establishes that Claimant’s erectile dysfunction naturally relates to his compensable injury, an injury in the lower back, with pain that radiates down into his lower extremities.

Additional findings of fact concerning the case’s procedural history are set out below.

IV. Findings Of Fact

  1. On or about_____, ____ (Claimant) suffered a compensable injury to his spine or lower back.
  2. Claimant’s injury is covered by worker’s compensation insurance provided for Claimant by the Hartford Underwriters Insurance Company (Carrier).
  3. On May 15, 2000, the Claimant’s treating physician, Dr. Fernando T. Avila, reported that Claimant was complaining of mid back pain radiating down into the right hip and leg, but was continuing to take medication with no side effects or problems. The report indicated that Claimant was taking Viagra.
  4. On May 2, 2001, Dr. Avila added a prescription of Viagra to Claimant’s current medication. The report from Dr. Avila indicates Claimant complained of erectile dysfunction.
  5. On May 2, 2001 and June 1, 2001, Dr. Avila prescribed Viagra, a medication used to treat erectile dysfunction.
  6. EZ RX Pharmacies (Petitioner) filed the prescriptions referred to in Finding of Fact No. 7. The cost of the two prescriptions totaled $932.32.
  7. On July 25, 2001, the Claimant was being treated with Viagra for erectile dysfunction secondary to the medication for lumbosacral radiculophathy/post laminectomy, low back pain, secondary myfascial pain, and situational depression.
  8. A report from Dr. Avila, dated August 31, 2001, indicated Claimant was taking the medication Viagra and included “Erectile Dysfunction Secondary to Medication” on the diagnosis.
  9. The lower back pain related to Claimant’s compensable injury is the primary factor contributing to Claimant’s erectile dysfunction.
  10. The prescription medication Viagra alleviates Claimant’s symptoms of erectile dysfunction.
  11. Because Claimant’s use of Viagra successfully treats his symptoms, neuropathy and radiculopathy are the likely physical causes of Claimant’s erectile dysfunction
  12. Petitioner EZ RX Pharmacies timely submitted a request for dispute-resolution review to the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (TWCC), after being denied payment by the Carrier.
  13. Notice of the hearing was sent December 10, 2001.
  14. 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.
  15. The hearing was held February 19, 2002 with ALJ Lilo D. Pomerleau presiding and representatives of the EZ RX Pharmacies, TWCC, and Hartford Underwriters Insurance Company participating. The hearing was adjourned the same day. The record closed February 27, 2002.
  16. The medication prescribed by Dr. Avila promotes the recovery of Claimant and was medically necessary to treat Claimant’s erectile dysfunction.

V. 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. Labor Code Ann. ch. 401 et seq.
  2. The State Office of Administrative Hearings (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 Ann. §413.031 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. §2001.052.
  4. An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of injury, as and when needed. The employee is specifically entitled to health care that cures or relieves the effects naturally resulting from the injury or promotes recovery. Tex. Labor Code Ann. § 408.021.
  5. The prescribed medication provided to the Claimant by the Petitioner was medically necessary and permitted by § 408.021 of the Act.
  6. Petitioner should be reimbursed for the cost of the prescriptions filled to treat the Claimant.

ORDER

IT IS, THEREFORE, ORDERED that EZ RX Pharmacies’ request for reimbursement of $932.32, for prescription medication Viagra for Claimant ____ from the Hartford Underwriters Insurance Company is granted.

Signed April 26, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

LILO D. POMERLEAU
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. EZ Ex. 1, November 12, 2001 letter of medical necessity, at 1.
  2. EZ Ex. 1 at 1. In the letter, Dr. Avila references the chemical (sildenfil) rather than Viagra. Sildenfil citrate is the chemical component of Viagra according to the Physician’s Desk Reference.
  3. TWCC Ex. 1 (certified record) at Bates 25, 50, 46, and 30, respectively.
  4. TWCC Ex. 1 (certified record) at Bates 42, 25.
  5. EZ Ex. 1 at 1.
End of Document
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