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At a Glance:
Title:
453-02-2425-m5
Date:
December 20, 2002

453-02-2425-m5

December 20, 2002

DECISION AND ORDER

Hassle Free Pharmacy Services (Petitioner) sought reimbursement of $4,710.86 from Fremont Industrial Indemnity Company (the Carrier) for prescription medication provided to____. (the Claimant). Subsequently, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) found that Petitioner’s records did not substantiate medical necessity and concluded it was not entitled to reimbursement. Petitioner challenged the MRD decision in a hearing; however, the Administrative Law Judge (ALJ) concludes Petitioner failed to show the prescription medication was medically necessary for the treatment of pain resulting from Claimant’s compensable injury.

I. Procedural History, Jurisdiction, and Notice

On October 21, 2002, ALJ Georgie B. Cunningham convened a hearing on this matter at the State Office of Administrative Hearings, 300 West 15th Street, Austin, Texas. Attorney John V. Fundis appeared for Petitioner, and Attorney Steven M. Tipton appeared for the Carrier. The Commission did not participate in the hearing. The parties did not contest notice or jurisdiction, which are addressed in the findings of fact and conclusions of law.[1] The hearing was closed the same day following the receipt of evidence.

II. Discussion

On________, the Claimant fell at work after tripping over some boxes on the floor. The Claimant initially asserted she had a lumbar spine injury, but later contended the injury extended to her cervical spine. Even though the parties did not definitively establish the Claimant’s diagnosis, it appears that she incurred a soft tissue injury. Nevertheless, the Claimant’s treating doctor referred her to Neil J. Atlin, D.O. on July 19, 2000, for an evaluation of her pain medication. Although it had been determined that the Claimant had achieved maximum medical improvement on April 17, 2000, Dr. Atlin determined when he first saw her on July 19, 2000, that she was suffering from pain in her neck, left shoulder, arm, and lumbar area extending into the tail bone. Dr. Atlin concluded the Claimant had chronic neck and low back pain syndrome associated with disc disruption, fibromyalgia, and reactive depression as a result of her _________work-related injury.

Between August 10, 2000, and June 27, 2001, Petitioner dispensed the following medications to the Claimant: Amitriptylin, Paxil, Hydocodone, Neurontin, Oxycontin, Phenergan, Elavil, Naproxen, Naprosyn, MS Contin, Klonopin, Carisprodol, Norco, Medrol, Zantac, Talwin NX, Flexeril, Valium, and Diphenhydramine. Petitioner, as a pharmacist, does not determine the medical necessity for a prescription. If a carrier questions the medical necessity of the prescriptions, it is the physician who must provide documentation establishing medical necessity.

The MRD records includes a printed statement from Dr. Atlin, who issued most of the prescriptions, that the medicine was medically necessary for the Claimant. The statement appeared to be a form that did not provide a rationale for medical necessity. At the hearing, Petitioner submitted Dr. Atlin’s deposition on written questions. Dr. Atlin did not respond to all of the questions, and the record is void of any information from the other prescribing physician, Dr. Charles D. Marable.

Without medical records or objective evidence, the ALJ found that Dr. Atlin’s opinions, especially those presented in the MRD record, were conclusory. Although the deposition provided some additional information, it left many questions unanswered. According to the evidence, it appears that the Claimant had over four dozen prescriptions for pain control, sleep inducement, mood stabilization, or a combination thereof in less than eleven months time. It also appears that she may have frequently received prescriptions and may have been taking many of the drugs concurrently.

Petitioner acknowledged it had the burden of proof and presented the deposition and the certified copy of the MRD record to prove its case. The ALJ finds, however, that the deposition fails to address the issues raised by the Carrier in the MRD record including Dr. Mark Parker’s medical opinion issued April 17, 2000, and Dr. Arthur L. Sarris’s medical opinion issued on June 7, 2000, following their independent medical evaluations. Additionally, Dr. James F. Hood reviewed and summarized the available medical records for the Carrier.

Drs. Parker, Sarris, and Hood referenced tests, treatment, and opinions provided by other doctors. During his examination, Dr. Parker observed the Claimant exhibited four of eight positive Waddell’s signs. After his examination, Dr. Sarris noted that she exhibited seven of eight positive Waddell’s signs, marked symptom magnification, and suboptimal effort on tests he performed. The doctors concluded the Claimant may have had preexisting, on-going problems with depression, a psychosocial disorder, and fibromyalgia and that her current symptoms are not ones that would be expected to occur from a slip and fall accident resulting in a contusion or sprain. It is noteworthy also that on April 6, 2001, the Commission’s benefit contested case hearing officer issued an order finding that the compensable injury did not extend beyond the Claimant’s lumbar spine to her cervical spine.

Although Dr. Atlin was aware of the decision and believed that her work related-injury caused the pain in her neck, shoulder, and arm, he made no attempt to explain how he formed his opinion or assessed her condition. Furthermore, Petitioner did not question Dr. Atlin about whether he had adopted a treatment plan or evaluated the treatment plan. Neither did Dr. Atlin address the other physicians’ opinions regarding the positive Waddell signs, discuss whether she had pre-existing or complicating conditions, or show how her current symptoms can be attributed to her compensable injury. He did not explain why he selected a certain drug, discontinued a drug, or why he found it necessary at times to prescribe multiple pain medication. The record is void of whether the Claimant made any functional gains or has been able to return to work.

The ALJ does not question the veracity of Dr. Atlin. Instead, it may be that Petitioner failed to ask sufficient questions in its written deposition to address the issues raised by the Carrier or to depose the Claimant’s treating doctor who made the referral to Dr. Atlin. The treating doctor knew or should have known about Dr. Parker’s and Dr. Sarris’s opinions and the Carrier’s challenge about compensability. Although the ALJ recognizes that the Texas Workers’ Compensation Act may put health care providers, including pharmacies, in untenable positions in its quest to ensure the quality of medical care for injured workers while also achieving effective medical cost control measures, this case rests on a simple burden-of-proof issue. Petitioner failed to show that the prescriptions cured or relieved the effects naturally resulting from the compensable injury, promoted recovery, or enhanced the ability of the Claimant to return to work, as addressed in Tex. Lab. CodeAnn. § 408.021.

Petitioner failed to meet its burden of proving that the medication was medically necessary for the treatment of the Claimant’s compensable injury. Therefore, reimbursement is denied. Additional facts and reasoning in support of this decision are set forth in the findings of fact, and the legal conclusions derived from those facts appear in the conclusions of law.

III. Findings of Fact

  1. On _______________(the Claimant) incurred a work-related injury to her lumbar spine when she slipped and fell.
  2. When the Claimant was injured, Fremont Industrial Indemnity Company (the Carrier) provided workers’ compensation insurance to her employer.
  3. The Claimant asserted that she had persistent pain.
  4. On July 19, 2000, Neil J. Atlin, D.O. began his treatment of the Claimant for pain in her neck, left shoulder, arm, and lumbar areas extending to her tail bone.
  5. At various times between August 10, 2000, and June 27, 2001, Dr. Atlin and another physician prescribed Amitriptylin, Paxil, Hydocodone, Neurontin, Oxycontin, Phenergan, Elavil, Naproxen, Naprosyn, MS Contin, Klonopin, Carisprodol, Norco, Medrol, Zantac, Talwin NX, Flexeril, and Diphenhydramine.
  6. Hassle Free Pharmacy Services (Petitioner) filled the prescriptions specified in Finding of Fact No. 5.
  7. Petitioner sought reimbursement of $4,710.86 from the Carrier for the prescriptions specified in Finding of Fact No. 5.
  8. The Carrier concluded that the treatment provided the Claimant was medically unnecessary and denied reimbursement. The Carrier also asserted Petitioner failed to comply with documentation requirements.
  9. Petitioner requested dispute resolution services from the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission).
  10. On February 7, 2002, MRD issued its decision denying Petitioner’s request for reimbursement.
  11. On March 1, 2002, Petitioner filed a request for a hearing before the State Office of Administrative Hearings (SOAH).
  12. On April 8, 2002, the Commission issued a hearing notice which 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.
  13. On April 6, 2001, the Commission determined in a contested case hearing that the Claimant’s compensable injury did not extend beyond her lumbar spine and did not involve her cervical spine.
  14. The Claimant reached maximum medical improvement with no impairment rating on April 17, 2000.
  15. Dr. Atlin was not designated as the Claimant’s treating doctor.
  16. Dr. Atlin did not attempt to show how the Claimant’s pain in her neck, left shoulder, and arm was attributable to her ______________injury.
  17. On April 17, 2000, the Claimant exhibited four of eight positive Waddell’s signs during a medical examination.
  18. On June 7, 2000, the Claimant exhibited seven of eight positive Waddell’s signs during a medical examination.
  19. During the June 7, 2000 medical examination, the Claimant exhibited marked symptom magnification and suboptimal effort on tests the physician performed.
  20. The Claimant’s _______________fall resulted in a contusion or sprain of the lumbar area.
  21. Dr. Atlin did not provide objective findings that the Claimant still suffered from the ________________compensable injury.
  22. The Claimant’s symptoms are not symptoms that ordinarily would occur so long after a slip and fall accident.
  23. The physician did not document special circumstances justifying treatment outside the expected recovery time.
  24. The Claimant’s problems may be exacerbated by psychological factors.
  25. The Claimant may have had preexisting, on-going problems with depression, a psychosocial disorder, and fibromyalgia.
  26. Dr. Atlin did not show the various prescription medications were effective in the treatment of the Claimant’s compensable injury.
  27. Dr. Atlin did now show that providing the various prescriptions to the Claimant was cost effective in addressing her compensable injury.
  28. Dr. Atlin did not objectively measure or demonstrate that the Claimant made any functional gains while taking the prescription medication.
  29. Dr. Atlin did not show the treatment would help the Claimant return to work.

IV. Conclusions of Law

  1. The Commission has jurisdiction over this matter pursuant to the Texas Workers' Compensation Act, Tex. Lab. CodeAnn. § 413.031.
  2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. CodeAnn. § 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
  3. Petitioner timely filed its request for a hearing, as required by 28 Tex. Admin. Code (TAC) § 148.3.
  4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
  5. Petitioner failed to show that the prescriptions were medically necessary, as specified in Tex. Lab. Code Ann. § 408.021.
  6. Petitioner failed to show by a preponderance of the evidence, as provided by 28 TAC §148.21(h) and (i), that it is entitled to the requested relief.

ORDER

Therefore, Hassle Free Pharmacy Services is not entitled to reimbursement from Fremont Industrial Indemnity Company for the prescriptions provided to the Claimant between August 10, 2000, and June 27, 2001.

Signed this 20th day of December, 2002.

GEORGIE B. CUNNINGHAM
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. The Carrier withdrew its initial challenge to jurisdiction.
End of Document
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