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At a Glance:
Title:
453-02-2731-m5
Date:
November 19, 2004
Status:
Retrospective Medical Necessity

453-02-2731-m5

November 19, 2004

DECISION AND ORDER

E.R.P. (Provider) appealed the decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) in a medical fee dispute. The MRD found that The University of Texas System (Carrier) properly denied reimbursement of $749.00[1] to Provider for Claimant’s prescriptions of hydrocodone (November 20, 2000, and January 16, 2001) and Vanadom (November 20 and December 18, 2000, and January 16 and 29, 2001), based upon insufficient documentation.[2] Provider requested a hearing. This decision concludes that Provider is entitled to $539.66 reimbursement for prescriptions filled on December 18, 2000, and January 16 and 29, 2001, but not for those filled on November 20, 2000.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

After Provider requested this appeal, the proceeding was abated in July 2002 pending resolution of a compensability issue concerning Claimant’s work-related injury of ____. According to both parties, that issue was decided against Carrier, and the parties joined in a request for a contested case hearing in this proceeding.

There were no contested issues of jurisdiction, notice, or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.[3]

The hearing in this matter convened September 20, 2004, at the State Office of Administrative Hearings (SOAH), 300 W. 15th Street, Austin, Texas, with Administrative Law Judge (ALJ) Charles Homer III presiding. The record closed on the same date. Provider was represented by its designated representative, pharmacist Nicky Otts, and the University of Texas System (Carrier) was represented by counsel Bradley D. McClellan.

II. DISCUSSION

The parties offered as evidence only the certified record of the MRD proceeding, supplemented by brief testimony from Nicky Otts that primarily concerned the relationship between Soma, a drug prescribed for Claimant, and Vanadom, the drug that was dispensed to him instead of Soma. Mr. Otts admitted that he is not a physician and could not supplement the record concerning medical necessity. The parties argued the case strictly on procedural grounds, with Provider arguing that Carrier did not raise medical necessity of four of the contested prescriptions before the MRD and that it should be barred from raising medical necessity as to those four prescriptions in this proceeding. Also, regarding the Vanadom, Provider argued that, having denied three of four Vanadom prescriptions only as being for conditions unrelated to the compensable injury (code “E”), Carrier is now barred from raising the defense of medical necessity. Provider argued that the diagnosis that was lacking in the documentation before the MRD has now been furnished, so that the “relatedness” issue is resolved in its favor by the litigation.

Carrier argued that Vanadom, a brand name formulation, was never prescribed (Soma was) and should not be reimbursed under Texas workers’ compensation law because Provider had no authority to substitute one brand name for another. Carrier conceded that it had no similar argument against the two sales of hydrocodone, which is the generic form of Lortab, but stood on its positions at the MRD, that there was no medical necessity for the November 20, 2000, sale and no relationship to the compensable injury for the January 16, 2001, sale.

The ALJ finds that no issues remain regarding the four prescriptions that Carrier denied under code “E.” That code indicates that Carrier “is disputing liability for the claim or compensability of the injury, and the issue has NOT been finally adjudicated.”[4] That issue was decided against Carrier, and Carrier did not raise any other reason for denial regarding those four prescriptions prior to the MRD request, as required by 28 TAC § 133.307.j)(2). Therefore, Carrier must reimburse Provider for them.

Regarding the two prescriptions for which Carrier denied reimbursement under code “U,” Provider did not meet its burden to show that the prescriptions were medically necessary. Recognizing that the hearing in this proceeding is de novo, and that the ALJ must consider the record as a whole, including relevant new evidence, the fact is that the ALJ has nothing new to consider.

Provider argues that the evidence contains statements of the physician who prescribed the medications for Claimant (J. Michael Freiberg, M.D.[5]). Because that injury has now been determined to be compensable, the doctor’s statements prove medical necessity and relatedness to the compensable injury for which Carrier is liable. But they do not.

Regarding Claimant’s injury and the treatment required for it, the record before this ALJ is the same as that before the MRD. Dr. Freiberg, the physician who prescribed the medications, does not indicate what kind of injury Claimant suffered on ____. His records show that he prescribed Lortab “for serious pain” and Soma for “painful muscle spasms” on occasions when he saw Claimant. The only tie to the compensable injury in Dr. Freiberg’s notes is a date of injury, “12-13-99.” Provider’s argument reduces to an assertion that any prescriptions ordered by the doctor at the documented visits are medically necessary for that injury. To accept that argument would be to abandon any requirement for Provider to prove medical necessity by linking the condition for which the medications were prescribed to the compensable injury. Furthermore, the two documented visits with Dr. Freiberg were on March 19, 2001, and May 2, 2001, months after the prescriptions at issue were dispensed.[6] Nothing in the record addresses the prescriptions filled on November 20, 2000.

The ALJ finds that Provider has not met its burden of proof as to those prescriptions, and orders no reimbursement for them.

II. FINDINGS OF FACT

  1. Claimant ____ suffered a compensable injury on ____.
  2. The University of Texas System (Carrier) is the provider of workers’ compensation insurance covering Claimant for his compensable injury.
  3. Carrier denied reimbursement for the prescriptions for hydrocodone for Claimant (November 20, 2000, and January 16, 2001) and for Vanadom (November 20 and December 18, 2000, January 16 and 29, 2001).
  4. Carrier denied reimbursement for the December 18, 2000, prescription and each of the three January 2001 prescriptions solely under TWCC code “E,” which is an assertion that Carrier is disputing liability for the claim or compensability of the injury, and the issue has not been finally adjudicated.
  5. Before the hearing on the merits in this case, Carrier’s dispute of liability for the claim or compensability of the injury was resolved against it.
  6. On September 10, 2001, Provider requested dispute resolution by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission.
  7. After conducting medical dispute resolution, MRD issued an order on February 20, 2002, declining to order additional reimbursement because the documentation presented was inadequate to determine medical necessity or relatedness of the medication to Claimant’s injury of ____.
  8. By letter dated February 26, 2002, Provider requested a hearing, and the case was referred to the State Office of Administrative Hearings.
  9. Dr. Freiberg’s notes do not identify the nature of Claimant’s compensable injury.
  10. Dr. Freiberg’s notes do not state whether Claimant’s pain and muscle spasms are results of his compensable injury.
  11. Provider failed to show that the disputed prescriptions filled on November 20, 2000, were medically necessary for Claimant’s compensable injury.
  12. Applying the MAR to the four prescriptions that Carrier denied under Code “E” produces a total of $539.66.

III. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction over this matter pursuant to the Texas Workers’ Compensation Act (the Act), specifically Tex. Labor Code Ann. § 413.031.
  2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Labor Code Ann. § 413.031(k), and Tex. Gov’t Code Ann. ch. 2003.
  3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001, and 28 Tex. Admin. Code ch. 148.
  4. The request for a hearing was timely made pursuant to 28 Tex. Admin. Code § 148.3.
  5. Adequate and timely notice of the hearing was provided according to Tex. Gov’t Code Ann.§§ 2001.051 and 2001.052.
  6. Based upon the Findings of Fact, Provider failed to establish by a preponderance of the evidence that the disputed prescriptions filled on November 20, 2000, were medically necessary for Claimant’s compensable injury.
  7. Based on the Findings of Fact and Conclusions of Law, the sole reason for which Carrier denied reimbursement has been decided against it in litigation.
  8. Based upon the Findings of Fact and Conclusions of Law, Provider’s request for reimbursement should be denied.

ORDER

IT IS ORDERED that The University of Texas System reimburse Provider a total of $539.66 for a prescription for hydrocodone for Claimant on January 16, 2001, and for prescriptions of Vanadom on December 18, 2000, and January 16 and 29, 2001.

IT IS FURTHER ORDERED that The University of Texas System need not reimburse Provider for the two disputed prescriptions filled on November 20, 2000.

Signed November 19, 2004.

CHARLES HOMER III
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 1 Ex. 1, p. 10. The only exhibit in this record is the 42-page certified record of the MRD proceeding. That amount is excluding MAR reduction.
  2. 2 The MRD found that “The [P]rovider has failed to establish what the patient’s diagnosis was at the time of the injury. . . . [T]here is no indication as to what injury was sustained on___. Without this information the Commission is unable to establish the medical necessity or relatedness of the medication in dispute.” Exh. 1, p. 10.
  3. 3 The parties agree that Provider has the burden of proof in this proceeding, and the ALJ assigned that burden accordingly. 1 Tex. Admin. Code (TAC) § 155.41; 28 TAC §§ 133.308(w) and 148.21(h).
  4. 4 TWCC 62 (Rev. 07/00)
  5. 5 Exh. 1, pp. 15, 17.
  6. 6 Id.
End of Document
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