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Title: 

453-02-1881-m4

Date: 

October 10, 2002

Type: 

Medical Fees

453-02-1881-m4

DECISION AND ORDER

I. Introduction

Plaza Pharmacies (Provider) has appealed a decision of the Texas Workers’ Compensation Commission (TWCC) Medical Review Division (MRD) denying its request that Transcontinental Insurance Company (Carrier) reimburse it $462.48 for drugs (Drugs) that it provided to____. (Claimant) in accordance with a prescription written by the Claimant’s treating physician (Treating Physician). The only disputed issues are:

  • Whether the Drugs were medically necessary to treat the Claimant’s compensable injury (Injury); and
  • Whether that medical-necessity dispute lies within the scope of the case.

As set out below, the Administrative Law Judge (ALJ):

  • Finds that the medical-necessity dispute lies within the scope of the case;
  • Cannot find from the evidence that the Drugs were medically necessary to treat the Injury; and
  • Concludes that the Provider’s reimbursement request should be denied.

II. Is the Dispute Concerning the Medical Necessity of the

Drugs Within the Scope of this Case?

The Provider argues that the Carrier is improperly raising a new argument against reimbursement-that the Drugs were medically unnecessary-that it did not raise before MRD. Indeed, the Provider contends that the Carrier did not timely give any reason for the denying reimbursement. Thus, the Provider maintains that any medical-necessity dispute is beyond the scope of this case, and the Carrier should be ordered to reimburse the Provider for the Drugs.

The Carrier responds that both the Provider and MRD understood that the Carrier disputed the medical necessity of the Drugs. Accordingly, the Carrier maintains that the medical necessity of the Drugs must be considered and is lacking. The ALJ agrees with the Carrier that the medical-necessity dispute is within the scope of this case.

The Provider furnished the Drugs to the Claimant on July 11, 2001, and submitted a reimbursement request of $462.48 (Claim) for them to the Carrier. The Provider included no documentation with its Claim indicating why the Drugs were needed to treat the Claimant’s Injury. On August 1, 2001, the Carrier sent the Provider an explanation of benefit (EOB) denying the Claim without indicating why. On August 20, 2001, the Provider resubmitted the Claim to the Carrier, but received no payment.

On October 29, 2001, the Provider submitted a request for medical dispute resolution concerning the Claim to TWCC. In its dispute-resolution request, the Provider stated, “The carrier has not responded to [the resubmitted Claim] sent on August 20, 2001,” yet the Provider also stated,”. . . the Carrier has denied these claims stating unreasonable or unnecessary.” Noting the contradiction, MRD denied reimbursement, finding that the medical necessity of the Drugs was not adequately documented.

As the Provider notes, several SOAH ALJs have held that an objection to a claim that was not raised in the Carrier’s EOB is beyond the scope of the subsequent SOAH proceeding.[1] Those decisions noted that Labor Code § 408.027(d) and 28 TAC § 133.304(a) require a Carrier within 45 days of receiving a medical bill to take final action on it and, if denying it, send the Provider a report that sufficiently explains the reason for the denial. In this case, there is no direct evidence that the Provider complied with those provisions. However, the Carrier somehow communicated to the Provider that it was denying the claims as unreasonable or unnecessary. The Provider admitted that in its own dispute-resolution request. Given that admission, the ALJ concludes that the Provider may not now argue to the contrary. The ALJ concludes that Carrier timely raised the medical-necessity objection and that it is within the scope of this case.

III. Were the Drugs Medically Necessary and Was that

Necessity Adequately Documented?

The Carrier argues and MRD found that the Drugs were not medically necessary to treat the Claimant’s Injury. The Provider argues that they were. As the party appealing the MRD’s decision, the Provider has the burden of proof.[2]

The Treating Physician, A.J. Morris, M.D., prescribed the Drugs Vanadom and Diazepam for the Claimant. Vanadom is a skeletal muscle relaxant used to relax certain muscles and relieve the stiffness, pain, and discomfort caused by strains, sprains, or other injury to muscles.[3] Diazepam is used to relieve anxiety and muscle spasms.[4] The Claimant continued to receive the Drugs until at least July 11, 2001. The Provider furnished the Drugs to the Claimant on July 11, 2001.

The only evidence that the Drugs were medically necessary were the Treating Physician’s August 10, 2001 and March 13, 2002 letters in which he stated:

  • As a result of the _______ Compensable Injury, the Claimant suffered from cervical and thoracic sprain and chest wall trauma and contusion with broken ribs;
  • The Claimant continued to suffer intolerable, severe and intractable cervical and thoracic pain as a direct result of the Injury;
  • Despite conservative treatment, the Claimant had no significant improvement in the Injury;
  • The Claimant’s Injury was essentially unresolvable;
  • The use of Vanadom, a muscle relaxant, in chronic pain management was well documented in that such pain was musculoskeletal in origin;
  • The use of Diazepam in chronic pain management was also well documented; and
  • The Claimant would perpetually need the Drugs to cope with his pain while performing his limited daily activities.[5]

The Carrier’s expert, Thomas S. Padgett, M.D., agreed that mild pain medication and muscle relaxants would be appropriate for six months after the Injury.[6] However, he very much disagreed that the Claimant still needed the Drugs more than six months after the Injury.[7] He noted that both of the Drugs were addictive and develop properties of tolerance, making continued use suspect. Moreover, Dr. Padgett observed that there was no objective evidence, such as x-rays, magnetic resonance imaging (MRI), or computed tomography (CT) scanning, showing non-union of ribs or other continuing Injury.

There is no evidence concerning the qualifications of either doctor. The Treating Doctor has direct contact with the Claimant, which should give his opinion greater weight. However, his opinion is undermined by his startling assertions that the Claimant’s cracked ribs and neck and thorax sprains, seemingly simple injuries, had not significantly improved by August 10, 2001, eight months after the Injury, and never would. Given the lack of documentary evidence to support that statement, such as an MRI, CT scan, or x-rays, the ALJ simply does not believe it. With that gap in the chain of evidence, the ALJ also cannot conclude that the Claimant remains in pain due to the Injury or that the Drugs, especially given there addictive nature, were medically necessary. The ALJ finds that the Provider has failed to carry his burden of proof.

IV. SUMMARY

The ALJ cannot find that the Drugs were medically necessary to treat the Injury, hence the Provider’s request for reimbursement should be denied.

V. FINDINGS OF FACT

  1. On______, the Claimant suffered a compensable injury-a cervical and thoracic sprain and chest wall trauma and contusion with broken ribs (Injury)-while his employer was _________ and its workers compensation insurer was Transcontinental Insurance Company(Carrier).
  2. Mild pain medication and muscle relaxants were appropriate to treat the Injury for six months.
  3. The Claimant’s treating physician, A.J. Morris, M.D., (Treating Physician) prescribed Vanadom and Diazepam (Drugs) for the Claimant.
  4. Vanadom is a skeletal muscle relaxant used to relax certain muscles and relieve the stiffness, pain, and discomfort caused by strains, sprains, or other injury to muscles.
  5. The use of Vanadom, a muscle relaxant, in chronic pain management is well documented.
  6. Diazepam is used to relieve anxiety and muscle spasms
  7. The use of Diazepam in chronic pain management is well documented.
  8. The Drugs are addictive and develop properties of tolerance, making continued long-term use inappropriate.
  9. The Claimant continued to receive the Drugs until at least July 11, 2001.
  10. The Provider furnished the Drugs to the Claimant on July 11, 2001, and submitted a reimbursement request for $462.48 for them to the Carrier.
  11. On August 1, 2001, the Carrier sent the Provider an explanation of benefit (EOB) denying the Claim but not indicating why.
  12. On August 20, 2001, the Provider resubmitted the Claim to the Carrier.
  13. The Carrier denied the Provider’s resubmitted request for reimbursement, contending that the Drugs were medically unnecessary or unreasonable to treat the Injury.
  14. On October 29, 2001, the Provider submitted a request for medical dispute resolution to TWCC concerning the Claim.
  15. On January 3, 2002, MRD denied the requested reimbursement, finding that there was not adequate documentation to show the Drugs medically necessary to treat the Injury.
  16. The Provider appealed the MRD’s decision to the State Office of Administrative Hearings (SOAH).
  17. Notice of an August 12, 2002, hearing in this case was mailed to the Carrier, the Provider, and the TWCC Staff on February 27, 2002.
  18. On August 12, 2002, William G. Newchurch, an Administrative Law Judge (ALJ) with SOAH held a hearing on the Carrier’s appeal at the William P. Clements Office Building, Fourth Floor, 300 West 15th Street, Austin, Texas. The hearing concluded and the record closed on the same day.
  19. The Carrier appeared at the hearing through its attorney, Steven P. Tipton.
  20. The Provider appeared at the hearing by telephone and through its designated representative, Nicky Otts.

VI. CONCLUSIONS OF LAW

  1. 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 Ann.§§ 402.073(b) and 413.031(k) (West 2002) and Tex. Gov’t Code Ann. ch. 2003 (West 2000).
  2. Adequate and timely notice of the hearing was provided in accordance with Tex Gov’t. Code Ann. §§ 2001.051 and 2001.052.
  3. As the party appealing the MRD’s decision, the Provider has the burden of proof in this matter pursuant to 28 Tex. Admin. Code §148.21(h).
  4. Under Tex. Labor Code § 408.021(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.
  5. The above Findings of Fact do not show that the Drugs were medically necessary to treat the Claimant’s Injury.
  6. Based on the above Findings of Fact and Conclusions of Law, the Provider’s request for reimbursement for the Drugs should be denied.

ORDER

The Provider’s request for reimbursement of $462.48 for the Drugs is denied.

Signed on October 10, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

WILLIAM G. NEWCHURCH
Administrative Law Judge

  1. See SOAH Docket No. 453‑99‑2021.M5 (July 20, 2000, ALJ Rusch); SOAH Docket No. 453‑99‑3399.M5 (May 18, 2000, ALJ Pacey); SOAH Docket No. 453‑96‑1446.M4 (Nov. 12, 1996, ALJ Corbitt); SOAH Docket No. 453‑97‑0973.M4 (May 14, 1998, ALJ Card); and SOAH Docket No. 453-00-1570.M5 (Oct. 20, 2000, ALJ Smith).↑
  2. 28 Tex. Admin. Code §148.21(h).↑
  3. U.S. National Library of Medicine, MEDLINEplus Health Information (09 September 2002) <http://www.nlm.nih.gov/medlineplus/druginfo/uspdi/202523.html.↑
  4. U.S. National Library of Medicine, MEDLINEplus Health Information (09 September, 2002) <http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a682047.htm.↑
  5. Ex. 1, p. 3 and Ex. 2.↑
  6. Ex. 4.↑
  7. Ex. 5.↑