DECISION AND ORDER

I. PROCEDURAL HISTORY

Ez Rx Pharmacies (Petitioner) appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (TWCC) denying reimbursement from TASB Risk Management Fund (Carrier) for prescription medication provided to____ (Claimant). TWCC was not a party to the dispute. This decision orders Carrier to reimburse Petitioner $498.22^[1] for the medication.

Administrative Law Judge (ALJ) Sharon Cloninger convened the hearing on February 27, 2002. Petitioner appeared by telephone through Randy Burgett, its Chief Operating Officer. Carrier was represented by Herman G. Wilks, Jr., its Department Director for Medical Claims. The hearing concluded and the record closed the same date.

II. ISSUE

The issue in this proceeding is whether Carrier should reimburse Petitioner $498.22 plus interest for Vanadom and Celebrex prescriptions that Petitioner filled for Claimant on June 20, 2000, and July 3, 2000. Carrier argues that because Petitioner failed to establish medical necessity for the prescribed medications, Petitioner should not be reimbursed. Petitioner’s position is that reimbursement is required because medical necessity was established by the treating physician’s office notes introduced at the hearing and by a March 21, 2001, letter from the treating physician, submitted to Carrier when Petitioner asked for reconsideration of the bill.

II I APPLICABLE LAW

Medical necessity is described in the Texas Labor Code as follows:

§ 408.021. Entitlement to Medical Benefits

(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
3. enhances the ability of the employee to return to or retain employment.

III. EVIDENCE

The documentary evidence in this case consisted of the 41-page certified record of the MRD proceeding (Carrier’s Exh. 1) and the treating physician’s office notes submitted by Petitioner (Petitioner’s Exh. 1). Additionally, Carrier called one witness.

A. PETITIONER’S EVIDENCE AND ARGUMENT

Documentary evidence

The certified record contained a letter from Claimant’s treating physician Paul Geibel, M.D., dated March 21, 2001, which stated he had been treating Claimant since 1998 for a work-related injury to her lower back,^[2] diagnosed as an L4-5 HNP.^[3] Dr. Geibel said Celebrex, an anti-inflammatory drug, and Carisoprodol, a muscle relaxant, are standard treatments for Claimant’s type of injury.^[4] He said he prescribed the medications on June 20, 2000, and July 3, 2000, as part of Claimant’s ongoing treatment. He said the prescriptions were reasonable and necessary. (Carrier’s Exh. 1, p. 18).

Petitioner introduced Dr. Geibel’s office notes dated December 18, 1998, July 26, 1999, and June 19, 2000, to establish medical reasonableness and necessity for the prescriptions in question. (Petitioner’s Exh. 1, b, d and e). These are the only times Claimant was seen by her treating physician between December 18, 1998, and June 19, 2000.

The December 18, 1998, office notes state Claimant continued to be symptomatic from L4-5 level HNP, with increased back pain due to weather changes. Dr. Geibel recommended heat, neurostimulator, and exercise, with use of medication as needed, although he did not say what kind of medication. Claimant remained on regular work duties. Claimant was to return to Dr. Geibel in six months for a follow-up visit. (Petitioner’s Exh. 1, e).

The July 26, 1999, office notes state Claimant had an episode of back pain and spasm two weeks prior to the office visit, and that her Soma^[5] prescription was refilled. Dr. Geibel said Claimant was active in a walking and exercise program, and that her neurostimulator helped her significantly. Claimant remained on regular work duties. She was to return for a follow-up visit in six months. (Petitioner’s Exh. 1, d).

In the June 19, 2000, office visit, Claimant reported she had back pain and spasm several weeks earlier, without any known precipitating event. Dr. Geibel found Claimant to have had an exacerbation of her work-related injury. He reported that Claimant was taking a Medrol Dosepak, which helped significantly, and using her neurostimulator and exercise, which had improved her back pain. He placed Claimant on Soma and Celebrex that day, and told her to continue exercising and using her neurostimulator. He noted that Claimant remained on regular work duties. (Petitioner’s Exh. 1, b.)

Argument

Petitioner argued that because Claimant’s work-related injury was exacerbated in the form of back pain and spasms, Dr. Geibel had a duty to treat her on June 19, 2000. Prescribing medication to relieve Claimant’s back pain falls within the legal definition of medical necessity, because the medication “cures or relieves” the effects of physical injury, as set out in Tex. Labor Code §408.021(a). The June 19, 2000, office notes constitute a treatment plan, because Claimant’s symptoms, diagnosis, and treatment to alleviate her pain and spasms are documented.

B. CARRIER’S EVIDENCE AND ARGUMENT

Testimony of Tobi Hobbs

Tobi Hobbs, manager of Carrier’s Medical Bill Review Unit, testified that prior to Dr. Geibel seeing Claimant on June 19, 2000, he had not seen her for nearly a year, the most recent prior office visit being July 26, 1999. The medical records contain no showing that Claimant received treatment for her work-related injury between those two dates.

Ms. Hobbs said that Dr. Geibel’s letter of March 21, 2001, submitted with Petitioner’s request for reconsideration, does not establish medical necessity as described in Tex. Labor Code 408.021 because it does not state that the medications cured or relieved Claimant’s symptoms; does not meet the documentation requirements set out in the Spine Treatment Guideline; and does not constitute a treatment plan. She said a treatment plan must state what the injury is, and include information about what the expected treatment and treatment outcomes are.

She said Carrier paid for Claimant’s June 19, 2000, office visit, because proof of medical necessity is not required for payment for office visits. She implied that such payment did not prove the prescriptions resulting from that office visit were therefore also medically necessary.

Argument

Mr. Wilks argued that prior to June 19, 2000, when Dr. Geibel prescribed Vanadom and Celebrex for her, Claimant’s last medication billed for was Vanadom, a muscle relaxer, prescribed on August 6, 1999. Because it had been nearly a year between treatments, Carrier denied payment for the prescriptions pending receipt of medical documentation showing medical necessity and causal relatedness of Claimant’s June 2000 symptoms to the original compensable injury.

Carrier contends that Dr. Geibel’s letter of March 21, 2001 does not comply with the documentation requirements of the Spine Treatment Guideline as far as demonstrating medical necessity, so reimbursement is not warranted. (Carrier Exh. 1, 23-24).

Carrier relied on the following section of the Spine Treatment Guideline, found at 28 TAC § 134.1001(e)(3)(B), to demonstrate that Petitioner did not provide adequate documentation to substantiate medical necessity:

(3) General Documentation Requirements.

(B) Documentation shall be provided by the health care provider to determine the phase of care to be provided and the necessity for that care. The elements of that documentation may include:

(i) a description of the injury, including the events surrounding that injury and the extent and severity of that injury;

(ii) a description of any pre-existing condition(s), complicating conditions, and/or any non-related conditions;

(iii) a treatment plan, including proposed methods of treatment, expected outcomes, and probable duration of treatment; (iv) updates to the treatment plan as needed, including the clinical progress of the injured employee and any revisions needed to the treatment plan based on the injured employee’s response to treatment;

(v) educational information provided to the injured employee regarding his or her injury and treatment plan, and the injured employee’s compliance with this treatment plan; and

(vi) objective documentation substantiating the need for deviation from the guideline, if necessary.

IV. ANALYSIS

Petitioner accepted and filled prescriptions issued by Claimant’s treating physician. Under applicable law, a pharmacist does not determine medical necessity for a prescription; the determination of medical necessity is made by the treating physician. If a Carrier questions the medical necessity of the prescriptions, it is the treating physician who must provide documentation establishing medical necessity.

The ALJ does not agree with Carrier’s contention that the treating physician’s documentation must meet the criteria set out in 28 TAC § 134.1001(e)(3)(B) to be sufficient to show medical necessity. That section of the Spine Treatment Guideline relates to determining the phase of care to be provided.^[6] Instead, the ALJ believes that if the documentation demonstrates that the treatment is related to the Claimant’s compensable injury, and is necessary to cure or relieve the effects of the injury, it is sufficient.

In this case, Petitioner submitted office notes to support medical necessity per Tex. Labor Code 408.021(a). The notes establish that the medication was prescribed to relieve Claimant’s back pain and spasms resulting from her compensable injury. Treatment was necessary to relieve pain, and presumably to help Claimant remain at work. Therefore, reimbursement is recommended.

V. FINDINGS OF FACT

1. On________, ____ (Claimant) suffered a compensable injury to her back.
2. Claimant’s injury is covered by worker’s compensation insurance written for Claimant’s employer by the Texas Association of School Boards (TASB) Risk Management. Fund (Carrier).
3. Claimant’s injury was exacerbated in June 2000 causing her back pain and spasms. No specific precipitating event causes Claimant’s back pain and spasms.
4. When Claimant visited her treating physician on June 19, 2000, he prescribed Celebrex, an anti-inflammatory medication, and Vanadom, a muscle relaxant, to treat her back pain and spasms.
5. Ez Rx Pharmacies (Petitioner) filled the prescriptions referred to in Finding of Fact No. 4.
6. The medications relieved Claimant’s back pain and muscle spasms resulting from her compensable injury.
7. The medications referred to in Finding of Fact No. 4 are standard treatment for the type of injury sustained by Claimant.
8. Petitioner timely requested dispute resolution by the Texas Workers’ Compensation Commission Medical Review Division (MRD).
9. The MRD issued its findings and decision on October 26, 2001, concluding that the disputed expenses should not be paid, and Petitioner timely appealed the decision.
10. The notice of hearing in this cause 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

VI. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (the Commission) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code §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 Tex. Labor Code §413.031 and Tex. Gov’t Code ch. 2003.
3. The Notice of Hearing issued by the Commission conformed to the requirements of Tex. Gov’t Code §2001.052.
4. 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. Tex. Labor Code §408.021 (a).
5. Petitioner has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Tex. Labor Code §413.031.
6. Based on Findings of Fact Nos. 3 – 7, Petitioner proved by a preponderance of the evidence that Celebrex and Vanadom were reasonably required and medically necessary to treat the Claimant.
7. Carrier should reimburse Petitioner $ 498.22 plus interest for prescriptions filled to treat Claimant.

ORDER

IT IS, THEREFORE, ORDERED that TASB Risk Management Fund reimburse EZ Rx Pharmacies $498.22 for prescriptions filled to treat Claimant.

Issued this 27^th day of March, 2002.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Although Petitioner asked the MRD to approve reimbursement of $501.47, the parties agreed at hearing that the amount in dispute is $498.22.↑
2. The injury occurred on______. (Carrier’s Exh. 1, 13).↑
3. Herniated nucleus pulposus: condition in which the nucleus of the spine pushes out and puts pressure on the spinal nerve. www.spineportal.com.↑
4. The prescriptions were for Vanadom and Celebrex. No prescription for Carisoprodol is at issue, nor was there testimony that Vanadom and Carisoprodol are the same drug. However, because both parties referred to the medications at issue as being anti-inflammatory drugs, muscle relaxants, and/or pain relievers, the ALJ presumes that Vanadom is one of those types of drugs.↑
5. Soma was not described in the documentation. Both parties referred to Claimant’s medications as either a muscle relaxant, pain reliever, or anti-inflammatory drug, so the ALJ assumes that Soma is one of those types of drugs.↑
6. The Spine Treatment Guideline sets out an Initial Phase of Care, Intermediate Phase of Care, Tertiary Phase of Care, and Post-tertiary Treatment. 28 TAC§ 134.1001(g)(1)-(7).↑