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At a Glance:
Title:
453-02-1843-m5
Date:
June 27, 2002

453-02-1843-m5

June 27, 2002

DECISION AND ORDER

This case is an appeal by Plaza Pharmacies (Petitioner, Provider) from a decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) in a medical fee dispute. The MRD denied Provider’s request for reimbursement from RSKCo/City of Fort Worth (Respondent, Carrier) for the prescription drug Prilosec[1] provided on March 5, 2001, and July 11, 2001, to___ (Claimant), who suffers from low back pain following a compensable back and ankle injury.

Provider has challenged the MRD’s conclusion that medical necessity for the Prilosec has not been established. This decision affirms the MRD’s conclusion, finding that reimbursement of $278.30 for the disputed medication should be denied.

I. Jurisdiction and Notice

The Texas Workers’ Compensation Commission (the Commission) has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. chapter 401 et seq. The State Office of Administrative Hearings (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. chapter 2003.

Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.

II. Procedural History

Administrative Law Judge (aron Cloninger convened the hearing April 29, 2002, at SOAH facilities in the William Clements Building, 300 West 15th Street, Austin, Texas. Provider was represented by the president of the general partnership that owns the pharmacy, Nicky Otts, who appeared by telephone. Carrier was represented by Jane Lipscomb Stone, attorney. The Commission did not participate in the hearing.

A letter of medical necessity from Claimant’s treating physician was admitted into evidence as Petitioner’s Ex. 1. The certified record that was before the MRD was admitted into evidence as Respondent’s Ex. 1. Claimant’s medical records and a description of a “hiatus hernia”[2] were admitted into evidence as Respondent’s Ex. 2. Respondent called Mr. Otts as a witness. No other witnesses were called.

At Respondent’s request, the ALJ took official notice of certain provisions of the Spine Treatment Guideline, 28 Tex. Admin. Code §134.001; of five prior SOAH decisions[3] related to medical reasonableness and necessity; and of the Commission’s pre-hearing brief related to SOAH Docket No. 453-01-3298.M5, addressing whether a doctor’s prescription creates a presumption of medical necessity. After arguments from the parties, the hearing was adjourned and the record closed that same day.

III. Discussion

Claimant, a police officer who was on duty as a security guard, suffered a compensable injury on_____, while attempting to prevent an altercation at a Halloween party. He injured his back and ankle, and continues to suffer from low back pain. He was treated by several doctors prior to becoming the patient of A.J. Morris, M.D., in February, 2001, who diagnosed him to have cervical and lumbar radiculopathy. While the medical records indicate Dr. Morris prescribed Prilosec to Claimant on several occasions, there is no documentation as to why the Prilosec was prescribed and there is no evidence that Claimant suffered from any of the conditions associated with a Prilosec prescription. In a letter of medical necessity dated June 5, 2001, Dr. Morris simply states “I believe the Prilosec is medically necessary to allow the patient to function and cope with his pain while performing his limited daily activities.” In a second letter of medical necessity, dated February 20, 2002, and worded very vaguely, Dr. Morris indicates he may have prescribed Prilosec to treat Claimant’s dyspepsia,[4] a condition that could interfere with Claimant’s low back pain therapy [emphasis added].

Applicable Law

Under Tex. Lab. Code Ann. §408.021(a)(1-3),

(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.[5]

“Health care,” under Tex. Lab. Code Ann. §401.011(19),

includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.

When a Claimant’s treatment is not clearly associated with the compensable injury, as in this case, the Spine Treatment Guideline sets out the following documentation requirements at 28 TAC 134.1001(e)(4):

Documentation Requirements for Unrelated or Intercurrent Illness. Situations may arise where certain medical conditions need to be delineated or clarified prior to intervention. Treatment administered to other body areas (not part of the original injury) or for a pre-existing medical condition(s) must be identified and the relation of this treatment to the treatment provided to the injured employee for the compensable injury must be documented by the health care provider. . . . The health care provider should clearly document the rationale for such treatment, its relation to the compensable injury and its relation to the treatment provided to the injured employee for the compensable injury.

Parties’ Positions

Carrier denied reimbursement for the Prilosec because it contends Dr. Morris did not demonstrate the medication was medically necessary to treat Claimant’s low back pain or ankle injury. Carrier argues that the dyspepsia is unrelated to Claimant’s low back and ankle injuries, and therefore any treatment for Claimant’s dyspepsia is not covered by Carrier. In support of its position, Carrier points to Claimant’s medical records, which indicate that as early as September 1998 Claimant had a hiatal hernia that was controlled with Prilosec. (Respondent’s Ex. 2, report of Daniel K. Boatright, D.O.) The March 13, 2000, case record of William H. Mitchell, M.D., states under the “Past History” section that Claimant has a history of hiatus hernia, and a May 15, 2000, letter from Joe Ellis Wheeler, M.D., states Claimant had prior hiatal hernia surgery. There is no evidence in the record establishing when Claimant developed a hiatal hernia. There is no evidence to indicate the hiatal hernia was in any way related to Claimant’s compensable injuries.

Carrier also asserts that Dr. Morris did not document the benefits of the Prilosec as required by the Spine Treatment Guideline. None of Dr. Morris’ notes document the condition for which Prilosec was prescribed, Claimant’s response to the Prilosec, or when the use of Prilosec would be re-evaluated.

At the hearing, Provider introduced a letter of medical necessity from Dr. Morris, and argued that Claimant’s dyspepsia is a side-effect of his low back pain treatment, and as such, is covered under the Texas Workers’ Compensation Act. Because the Prilosec addresses the side effects of Claimant’s treatment--specifically that the Celebrex prescribed to control Claimant’s back pain can cause gastric distressBthe Prilosec promotes Claimant’s recovery from his compensable injury.

C. ALJ’s Analysis

Provider accepted and filled prescriptions issued by Claimant’s treating physician, Dr. Morris. 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 a prescription, it is the treating physician who must provide documentation establishing medical necessity. A prescription, by itself, is not evidence of medical necessity. Provider is not entitled to payment merely because it filled a prescription in good faith. Rather, it must, like all other providers, establish that it is entitled to payment under the Commission’s rules. Provider did not establish that it was medically reasonable and necessary for Dr. Morris to prescribe Prilosec to treat Claimant’s compensable injuries.

In this case, Provider submitted Dr. Morris’ letter of medical necessity, which states Claimant’s dyspepsia may be related to the compensable injury, and that treating the dyspepsia might allow Claimant to continue treatment that relieves his low back pain [emphasis added]. The letter does not establish that the dyspepsia naturally results from the compensable injury; that the Prilosec promotes Claimant’s recovery; or that the Prilosec allows Claimant to return to or retain employment. Prilosec-a medication typically indicated for duodenal ulcer, gastric ulcer, gastroesophageal reflux disease, and erosive esophagitis--was not shown to be necessary to cure or relieve Claimant’s low back pain or ankle injury. The possible rationale for the Prilosec prescription-if much is read into Dr. Morris’ vaguely worded February 20, 2002 letter--is that it treats the dyspepsia, which prevents Claimant from continuing with his low back pain therapy. There is no evidence that the dyspepsia results from Claimant’s back or ankle injuries. There is no evidence that the Celebrex, used to treat low back pain, causes Claimant’s dyspepsia. There is no evidence as to whether the hiatal hernia is a pre-existing condition or related to Claimant’s compensable injuries.

Provider did not satisfy its burden of proof. Provider did not show that the Prilosec was medically necessary to treat Claimant’s compensable low back or ankle injuries. Provider did not show that the benefits of Prilosec were properly documented as required by the Spine Treatment Guideline. Because Provider did not meet its burden of proof, the ALJ finds that Provider should not be reimbursed for the Prilosec dispensed on March 5, 2001, and July 11, 2001.

IV. Findings of Fact

  1. ____ (Claimant) suffered a compensable injury to his lower back and left ankle on ____.
  2. Several doctors treated Claimant for his injury prior to____, when he became the patient of A.J. Morris, M.D.
  3. Dr. Morris prescribed Prilosec for Claimant, and Plaza Pharmacies (Provider) dispensed the prescriptions on March 5, 2001, and July 11, 2001.
  4. The condition for which the Prilosec was prescribed is not documented.
  5. RSKCo/City of Fort Worth (Carrier) declined to reimburse Provider for the Prilosec dispensed to Claimant on March 5, 2001, and July 11, 2001.
  6. Provider filed a request for dispute resolution.
  7. The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) denied Provider’s request for reimbursement in an order dated November 29, 2001.
  8. Provider appealed the MRD decision, requesting a hearing before the State Office of Administrative Hearings (SOAH).
  9. Notice of the hearing was mailed to the parties February 15, 2002.
  10. 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.
  11. The hearing was held April 29, 2002. Carrier was represented by Jane Lipscomb Stone, attorney. Provider was represented by Nicky Otts, who appeared by telephone. The Commission did not participate in the hearing. The hearing was adjourned and the record closed that same day.
  12. The amount in dispute is $278.70, for Prilosec prescriptions dispensed by Provider to Claimant on March 5, 2001, and July 11, 2001.
  13. The Prilosec referenced in Finding of Fact No. 12 was not medically necessary to treat Claimant’s compensable injury.
  14. Dr. Morris did not properly document how the Claimant benefitted from Prilosec.

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. Lab. Code Ann. chapter 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. chapter 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann.§2001.052.
  4. The charges for the Prilosec should not be reimbursed because Carrier proved the medications were not medically necessary, and Carrier further demonstrated there was no documentation showing the Prilosec benefitted the Claimant as far as his compensable injury. 28 Tex. Admin. Code § 134.1001(e)(4).
  5. Provider should not be reimbursed for the Prilosec dispensed to Claimant on March 5, 2001, and July 11, 2001.

ORDER

IT IS, THEREFORE, ORDERED that the Petitioner, Plaza Pharmacies, shall not be reimbursed by Respondent, RSKCo/City of Fort Worth in the amount of $278.30 for the Prilosec dispensed on to Claimant on March 5, 2001, and July 11, 2001.

Signed June 27, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

SHARON CLONINGER
Administrative Law Judge

  1. Prilosec is indicated for duodenal ulcer, gastric ulcer, gastroesophageal reflux disease, and erosive esophagitis. See 2001 Physician’s Desk Reference. (Respondent’s Ex. 1, 28).
  2. A hiatus hernia (also called hiatal hernia) is a hernia in which an anatomical part (such as the stomach) protrudes through the esophageal hiatus of the diaphragm. Merriam-Webster’s Medical Dictionary, 1995, p. 289.
  3. The decisions are Continental Casualty Company v. Plaza Pharmacies (SOAH Docket No. 453-02-0532.M5), issued February 11, 2002; EZ Rx Pharmacies v. Texas Association of School Boards Risk Management Fund (SOAH Docket No. 453-01-1120.M5), issued May 24, 2001; Scientific Therapy & Advanced Treatment v. Continental Casualty Company (SOAH Docket No. 453-01-0481.M2), issued January 16, 2001; EZ Rx Pharmacies v. National Fire Insurance Company of Hartford (SOAH Docket No. 453-02-0773.M5), issued March 19, 2002; and Plaza Pharmacy v. The City of Fort Worth, Texas (SOAH Docket No. 453-01-3298.M5), issued April 23, 2002.
  4. Dyspepsia is indigestion. Merriam-Webster’s Medical Dictionary, 1995, p. 191.
  5. Tex. Labor code§408.021(a)(3) is not relevant to this proceeding, as Claimant is retired.
End of Document
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