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At a Glance:
Title:
453-02-2394-m5
Date:
August 23, 2002
Status:
Retrospective Medical Necessity

453-02-2394-m5

August 23, 2002

DECISION AND ORDER

Hassle Free Pharmacy Services (Petitioner) appeals the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) denying reimbursement from Fairmont Insurance Company (Carrier) for prescription medication provided to ___(Claimant). The Administrative Law Judge (ALJ) concludes Petitioner met its burden of proving the prescription drugs were medically necessary for the treatment of pain resulting from Claimant’s compensable injury. Therefore, Carrier is to reimburse Petitioner $1,345.38 for the medications Lortab and Daypro provided to Claimant between September 14, 2000 and April 9, 2001.[1]

I. Jurisdiction, Notice, and Procedural History

The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act, Tex. Lab. Code Ann. ch. 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 ch. 2003.

The MRD issued its findings and decision on February 8, 2002, denying Petitioner’s reimbursement request. On February 22, 2002, Petitioner filed a timely request for hearing before SOAH. Proper and timely notice of the hearing was issued on April 3, 2002. The hearing convened July 24, 2002, before ALJ Sharon Cloninger. Attorney John V. Fundis appeared via telephone for Petitioner. Attorney Tommy Lueders appeared for Carrier. The Commission was not a party to this dispute. The hearing adjourned and the record closed that same day.

II. Issue

The issue in this proceeding is whether Carrier should reimburse Petitioner $1,345.38 plus interest for Lortab and Daypro prescriptions that Petitioner filled for Claimant between September 14, 2000, and April 9, 2001. Carrier argues that because Petitioner failed to establish medical necessity for the prescribed medications, Petitioner should not be reimbursed. Petitioner asserts reimbursement is required because it established medical necessity through documentary evidence admitted during this proceeding.

III. Applicable Law

Medical necessity is described at Tex. Lab. Code Ann. §§ 408.021 as follows:

(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.

Tex. Lab. code Ann. § 401.011(19) defines “health care” to include “all reasonable and necessary medical . . . services. . . .The term includes:. . . .(E) a prescription drug, medicine, or other remedy; . . .” The Petitioner has the burden of proof in this matter. 28 Tex.Admin. Code (TAC) 148.21(h).

IV. Evidence and Argument

The evidence in this case consisted of the 109-page certified record of the MRD proceeding (Carrier’s Exhibit 1) and three documents submitted by Petitioner. Neither party called witnesses.

  1. Petitioner’s Evidence and Argument
    1. Petitioner’s Evidence

On_________, Claimant slipped on a wet floor at work, suffering a herniated lumbar disc and an injury to his left shoulder.[2] On May 7, 1999, William Larkin, M.D., began treating Claimant for his work-related, compensable injuries. Between September 14, 2000, and April 9, 2001, on 25 occasions, Dr. Larkin prescribed Lortab, a pain reliever, for Claimant. In Dr. Larkin’s opinion, the Lortab relieved the effects naturally resulting from Claimant’s compensable injury, because the medication decreased Claimant’s pain associated with his injury. In Dr. Larkin’s opinion, the Lortab was reasonably required by the nature of Claimant’s compensable injury. (Petitioner’s Exhibit 1).

Dr. Larkin prescribed Daypro for Claimant on February 1, 2001. In Dr. Larkin’s opinion, the Daypro was reasonably required by the nature of Claimant’s compensable injury, in that it decreased pain associated with Claimant’s compensable injury. (Petitioner’s Exhibit 1).

Petitioner offered a July 30, 2001, letter from Dr. Larkin, addressed “To whom it may concern,” to rebut conclusions drawn by Katherine Blanchette, M.D., Carrier’s peer review physician, that Lortab was not medically necessary. In the letter, Dr. Larkin explains that Claimant must take Lortab instead of over-the-counter pain medication, as recommended by Dr. Blanchette in her July 6, 2000 review, because Claimant continues to have persistent pain, and in the past developed gastric ulcerations when taking over-the-counter anti-inflammatory agents. Dr. Larkin states Claimant would run the risk of developing a perforated ulcer if he were to switch from Lortab to over-the-counter anti-inflammatory agents. (Petitioner’s Exhibit 3).

Dr. Larkin’s July 30, 2001, letter also rebuts Dr. Blanchette’s contention that Claimant’s

diagnostic studies reveal no significant acute or traumatic structure pathology. He states Claimant has a bulging disc, which is apparently causing irritation, because of radiculopathy,[3] as seen on the EMG.[4] Dr. Larkin says there is no evidence that the radiculopathy is due to degenerative changes, as Dr. Blanchette contends. In Dr. Larkin’s opinion, Claimant will eventually require surgery to obtain relief from persistent low back pain. (Petitioner’s Exhibit 3).

Petitioner’s Argument

Counsel for Petitioner argued that Dr. Larkin, Claimant’s treating doctor, is more knowledgeable about Claimant’s medical condition and needs than are the reviewing doctors, who have never examined Claimant, so Dr. Larkin’s determination that Lortab was necessary to treat Claimant’s low back pain should be given more weight than the determination by Dr. Blanchette, a peer review physician, that the Lortab was not medically necessary. Counsel also argued that Dr. Blanchette’s recommendation that Claimant take over-the-counter pain relievers rather than Lortab was not an option, because when Claimant used over-the-counter pain relievers in the past, those medications caused him to develop ulcerations of the stomach, and could cause him to develop a perforated ulcer if he were to take them again.

  1. Carrier’s Evidence and Argument
    1. Carrier’s Evidence

Dr. Blanchette’s Extensive Peer Review, prepared July 6, 2000 (Carrier’s Exhibit 1, 63-68), indicates that Lortab and Daypro are not medically necessary to treat Claimant’s low back pain. She concludes Claimant sustained nothing more than a strain/sprain injury to his lumbar spine on________, and that the injury was complicated by pre-existing degenerative changes. She states that upon Claimant’s attainment of Maximum Medical Improvement (MMI) on September 8, 1999, the medical necessity for further treatment ended. She states Claimant should not receive any more refills for Lortab, which is a narcotic medication used to treat acute severe pain during the immediate post-injury period. She says long-term use of narcotic medications such as Lortab will foster both psychological and physical dependence, and therefore, Claimant’s use of Lortab should be discontinued immediately. She recommends a future treatment plan that includes nothing more than a transition to a home exercise program and the use of over-the-counter anti-inflammatory medications as needed.Furthermore, she concludes, there does not appear to be any significant objective evidence of acute or traumatic structural pathology which would necessitate the use of long-term prescription medications.

Carrier’s Argument

Carrier’s counsel argued that Dr. Larkin did not submit medical records, treatment notes, or treatment plans to support the medical reasonableness and necessity of the Lortab and Daypro prescriptions. Carrier’s counsel defended Dr. Blanchette’s review by stating it is common practice for doctors to form a medical opinion based upon the review of medical records, without actually examining the patient in question.

IV. Analysis

Petitioner accepted and filled prescriptions issued by Claimant’s treating physician. Petitioner, as 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. 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 under both Tex. Lab. Code Ann. § 408.021(a) and the Spine Treatment Guideline (STG) to establish medical necessity.

Section 134.1001(g)(6) of the STG addresses treatment of employees who have reached MMI, such as Claimant, and states in part “Treatment should be provided to control pain. . . .”

For a provider to receive payment for the treatment, the aforementioned rule states “a treatment must be related to the compensable injury and be reasonable and necessary treatment for that injury.”

The evidence establishes that Claimant’s low back pain is related to his compensable injury; Carrier does not dispute this fact. Neither does Carrier dispute that it is reasonable for Claimant’s low back pain to be treated.

At issue, then, is the necessity of treating Claimant’s low back pain with Lortab and Daypro versus using another form of treatment. The evidence establishes that Claimant cannot use over-the-counter anti-inflammatory agents in lieu of Lortab or Daypro to treat his low back pain, because such medications have caused him to develop ulcerations of the stomach in the past, and could lead to a perforated ulcer if taken again. Therefore, as far utilizing drugs to treat Claimant’s persistent pain, a prescription pain reliever - such as Lortab or Daypro - is medically necessary. The evidence also establishes that treatments such as pain management or an at-home exercise program are not viable alternatives for treating Claimant’s persistent low back pain; indeed, it is Dr. Larkin’s opinion that surgery is required to permanently relieve Claimant’s low back pain.

The MRD’s rationale for its decision denying payment is that pursuant to Section 134.1001(e)(2) and (3) of the STG, treatment of a work-related injury must be adequately documented, objectively measured and demonstrated functional gains [sic]. The ALJ does not agree with the MRD’s decision that the treating physician’s documentation must meet the aforementioned criteria to be sufficient to show medical necessity. The section of the STG relied on by the MRD relates to determining the phase of care to be provided,[5] not to demonstrating medical necessity for a claimant who has reached MMI. The ALJ believes that if the documentation demonstrates that the treatment is related to Claimant’s compensable injury, and is necessary to cure or relieve the effects of the injury, it is sufficient under both Tex. Lab. code Ann. § 408.021(a) and the STG to establish medical necessity.

In this case, Petitioner submitted a deposition on written questions answered by Dr. Larkin, Claimant’s treating physician, establishing that the Lortab and Daypro were prescribed to relieve Claimant’s low back pain resulting from his compensable injury. The ALJ concludes that Petitioner has met its burden of proving that the Lortab and Daypro were medically necessary for the treatment of Claimant’s compensable injury within the meaning of Tex. Lab. Code Ann. §408.021. Therefore, reimbursement is ordered.

IV. Findings of Fact

  1. On_________, ___(Claimant) suffered compensable injuries to his back and left shoulder.
  2. Claimant’s injuries are covered by workers’ compensation insurance written for Claimant’s employer by Fairmont Insurance Company (Carrier).
  3. Claimant reached Maximum Medical Improvement on September 8, 2000.
  4. Claimant’s diagnosis consists of a bulging lumbar disc that is causing irritation because of radiculopathy as seen on Claimant’s electromyogram.
  5. Claimant’s injury caused him persistent low back pain between September 14, 2000, and April 9, 2001.
  6. Between September 14, 2000, and April 9, 2001, William Larkin, M.D., Claimant’s treating physician, prescribed Lortab 25 times and Daypro once to relieve Claimant’s low back pain related to his compensable injury.
  7. Hassle Free Pharmacy Services (Petitioner) filled the prescriptions referenced in Finding of Fact No. 6.
  8. Petitioner provided $1,345.38 worth of Lortab and Daypro to Claimant between September 14, 2000, and April 9, 2001.
  9. The Lortab and Daypro relieved Claimant’s low back pain resulting from his compensable

injury.

  1. Claimant cannot switch from prescribed pain relievers to over-the-counter anti-inflammatory agents, because when he has used over-the-counter anti-inflammatory agents in the past, he has developed ulcerations of the stomach.
  2. Petitioner requested reimbursement from Fairmont Insurance Company (Carrier), which Carrier denied.
  3. Petitioner filed a Request for Medical Dispute Resolution with the Texas Workers’ Compensation Commission (the Commission).
  4. The Commission’s Medical Review Division (MRD) issued its decision denying Petitioner’s request on February 8, 2002.
  5. On February 22, 2002, Petitioner filed a timely request for a hearing before the State Office of Administrative Hearings (SOAH).
  6. Notice of the hearing was issued on April 3, 2002.
  7. 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.
  8. The hearing convened July 24, 2002, before Administrative Law Judge (ALJ) Sharon Cloninger. Attorney John V. Fundis appeared via telephone for Petitioner. Attorney Tommy Lueders appeared for Carrier. The hearing adjourned and the record closed that same day.

V. Conclusions of Law

  1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers' Compensation Act, Tex. Lab. Code Ann. ch. 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 ch. 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code §2001.052.
  4. Petitioner has the burden of proving by a preponderance of the evidence that it should prevail in this matter. 28 Tex. Admin. Code §148.21(h).
  5. 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. Lab. Code Ann. §408.021(a).
  6. Petitioner has met its burden of proving the Lortab and Daypro were medically necessary for the treatment of Claimant’s compensable injury within the meaning of Tex. Lab. Code Ann. §408.021.
  7. Carrier should reimburse Petitioner $1,345.38 plus interest for prescriptions filled to treat Claimant.

ORDER

IT IS, THEREFORE, ORDERED that Fairmont Insurance Company is to reimburse Hassle Free Pharmacy Services in the amount of $1,345.38 plus interest for Lortab and Daypro provided to Claimant between September 14, 2000, and April 9, 2001.

Signed August 23rd, 2002.

SHARON CLONINGER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. The MRD decision also denied payment of $66.50 for Clonazepam provided by Petitioner to Claimant on February 26, 2001. Petitioner no longer seeks reimbursement for that prescription, but continues to seek reimbursement for filling 25 Lortab prescriptions and one Daypro prescription. Therefore, although the MRD decision denies payment of $1,411.88, the amount in controversy on appeal totals $1,345.38.
  2. Because the medications in dispute were prescribed to treat pain related to Claimant’s back injury only, the shoulder injury will not be discussed any further.
  3. Radiculopathy is any pathological condition of the nerve roots. Merriam Webster’s Medical Dictionary (1995), p. 581.
  4. An EMG is an electromyogram, a tracing made with an electromyograph, which is an instrument that converts the electrical activity associated with functioning skeletal muscle into a visual record. . . used to diagnose neuromuscular disorders. Id., at pp. 198, 201.
  5. 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).
End of Document
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