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At a Glance:
Title:
453-02-3530-m5
Date:
January 28, 2003
Status:
Retrospective Medical Necessity

453-02-3530-m5

January 28, 2003

DECISION AND ORDER

Hassle Free Pharmacy Services (Petitioner) appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission). The MRD held that Petitioner did not establish the medical necessity for certain prescription medications because the documentation did not adequately describe the injury, the extent and severity of the injury, the existence of non-related, complicating conditions, and the treatments received prior to the request for the medications. The administrative law judge (ALJ) finds that Petitioner failed to meet its burden of proof that the medications were medically necessary to treat Claimant’s work-related injury.

I. PROCEDURAL HISTORY, JURISDICTION, AND NOTICE

Petitioner filed its request for a hearing with the Commission on June 13, 2002. ALJ Katherine Smith held the hearing on November 25, 2002, in the facilities of the State Office of Administrative Hearings (SOAH) in Austin, Texas. Petitioner was represented by Peter Rogers, an attorney. Carrier was represented by Steven Tipton, an attorney. The Commission did not appear. There were no contested issues of jurisdiction or notice.

II. BACKGROUND

Claimant____ suffered a compensable injury on_____, when she picked up a box weighing more than 40 pounds and felt something pull. She complained of pain in her lower back, abdomen, and left shoulder. She underwent surgical repair for an abdominal hernia on May 30, 1997. Her back complaints persisted. She also complained of pain in her neck, but a Commission hearings officer determined in October 1999 that Claimant did not suffer a compensable injury to her cervical area on______. Carrier Ex. 8. She suffered another work-related injury to her right shoulder on______. At issue are medications Claimant received from November 9, 2000, through February 19, 2001BHydrocodone, Ambien, Imitrex, Celebrex, Effexor, and SonataBwhich were prescribed by C.M. Schade, M.D., an anesthesiologist and pain management specialist. Carrier denied the request for reimbursement based on a peer review conducted by William C. Watters , III, M.D., an orthopedic surgeon. Dr. Watters concluded that the medications were not medically reasonable and necessary because “any soft-tissue injury sustained by the lifting event at work on 2/17/97 would have been long ago healed” and because “her current diagnosis is obscure.” Petitioner’s Ex. 1 at 42. Carrier also denied the charges for not being related to the compensable injury.

III. EVIDENCE AND ANALYSIS

A. Petitioner’s Position

Relying on a letter written by Dr. Schade and a deposition he gave, Petitioner argues that, as Claimant’s treating doctor, Dr. Schade is in a better position than Dr. Watters and Carrier’s expert witness Dr. John Harney to determine whether the medications prescribed were reasonable and necessary. Petitioner’s Ex. 1 at 39 and Ex. 2. Petitioner argues that Dr. Schade’s letter and deposition state that the primary diagnosis is lumbar radicular syndrome, for which the medications were prescribed. Petitioner also points to an impairment rating of 17% due to Claimant’s injuries as justification for the use of Hydrocodone, Celebrex, and Sonata for chronic pain.

B. Carrier’s Position

Carrier argues that Petitioner did not comply with the requirements of the Spine Treatment Guideline (STG)[1] because there was no documentation identifying a treatment plan that included information about what treatments preceded the prescribed medications and whether they had worked or not. Carrier also argues that medical necessity was not sufficiently established because much of Claimant’s complaints were related to her neck and right shoulder. Petitioner’s Ex. 3 at 52; Carrier’s Exs. 6-8. Carrier notes that 8% of a subsequent 14% impairment rating is related to her cervical area. Petitioner’s Ex. 3 at 80.[2] Carrier points out that both impairment ratings were made before the Commission found that Claimant’s compensable injury did not include an injury to her cervical area. Carrier also argues that Claimant has degenerative lumbar disc disease and experienced a low back injury in 1994 from which she suffered subsequently. Petitioner’s Ex. 3 at 95‑96. Carrier contends that the lumbar strain caused by the February 1997 injury has long since resolved, as did the hernia and left shoulder strain.

C. Analysis

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 injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Labor Code Ann. §408.021. “Health care" includes ”a prescription drug, medicine, or other remedy.” Tex. Labor Code Ann. § 401.011(19)(E).

As Carrier notes, the STG Ground Rules require that treatment of a work related injury must be adequately documented, evaluated for effectiveness, and modified based on clinical changes, and be objectively measured and demonstrate functional gains. Ground Rule (e) (2) (A). The Ground Rules also require that the health care provider furnish documentation establishing the phase of care to be provided and the necessity for that care. Documentation may include a description of the injury, a description of pre-existing conditions, a treatment plan, and updates to the treatment plan. Ground Rule (e) (3). The Ground Rules also call for the treating doctor to be a gatekeeper, requiring him or her to be responsible for the efficient use of health care and for monitoring all health care services to ensure that they are appropriate, related to the compensable injury, effective and are not duplicative. Ground Rule (c) (1) (E) and (2) (A).

In Dr. Schade’s letter dated August 6, 2001, he states that Claimant is receiving care for the following diagnoses related to the compensable injury of_____:

  1. Lumbar radicular syndrome with bulging discs at L2-3, degenerative bulging discs at L3-4
  2. Right cervical radicular syndrome bulging discs at C4-5, degenerative bulging discs at C5-6 and C6-7
  3. Bilateral greater occipital neuritis causing headaches, secondary to above
  4. Depression secondary to above

Dr. Schade also states that Claimant is being treated with the following medications for her chronic pain syndrome to relieve her pain and improve her quality of life: Tylox, Lortab,[3] Sonata, Celebrex, and Prozac. Dr. Schade adds that Claimant will require continued medical care for the rest of her life. Patient’s Ex. 1 at 39-40. In his deposition dated October 25, 2002, Dr. Schade states that Claimant is receiving Lortab, Ibuprofen/Vioxx, and Elavil for the complaints listed above relating to her injury of_____. Petitioner’s Ex. 2 at 3. He also states that Claimant was treated conservatively without operations and with epidural steroid injections that caused some rebound pain, for which some of the pain medicine was being prescribed. Id. at 3-4.

Although Dr. Schade attempts in his deposition to address the MRD’s decision that the documentation failed to discuss Claimant’s prior treatment, in doing so he brings to the fore his failure to address the degree to which he was actually treating Claimant’s cervical pain. The only evidence in the record regarding epidural steroid injections was to the cervical area. Petitioner’s Ex. 3. And even though the primary diagnosis concerns the lumbar area, he fails to address the degree to which Claimant’s pain is related to the ____ injury, degenerative disc disease, and more recent injuries. Also troubling is the complete lack of medical records from Dr. Schade concerning Claimant’s treatment. The only medical note in the record by Dr. Schade was actually supplied by the Carrier, and that concerned a new injury, falling off a front porch in_____. Carrier’s Ex. 6. In the other words, Dr. Schade has failed to uphold his role as gatekeeper as required by the STG.

Also troubling are the inconsistencies between not only Dr. Schade’s letter and his deposition concerning the medications he prescribed, but also with regard to the medications that are at issue in this proceeding. Recognizing those inconsistencies, Petitioner, nevertheless, argues that Hydrocodone, which is an analgesic used to treat pain, Sonata, which is given to treat insomnia, and Celebrex, which is a non-steroidal anti-inflammatory medication used to reduce inflammation, are needed to treat the primary diagnosis, lumbar radicular syndrome.[4] In response Dr. Harney testified that the medications prescribed were not reasonable or necessary for Claimant’s myofascial injury of______, from which she essentially recovered. Dr. Harney indicated that Claimant’s other injuries played a greater role in her discomfort. More specifically he testified that Celebrex, which is used to treat arthritis, was more likely used to treat Claimant’s cervical and lumbar spondylosis. Dr. Harney also testified that the amount of Hydrocodone prescribed (80 mg per day), combined with acetaminophen (4000 mg per day), was a dangerous combination for a long period of time. Dr. Harney noted that records show Claimant was receiving Hydrocodone in July 2000 from more than one physician, which violates the agreement between the doctor and patient of using one physician to dispense analgesics. He noted that a psychological evaluation performed on November 3, 1999, revealed hypochondriasis, hysteria, somatization and pain exaggeration that would not be resolved with medical treatment alone. His opinion was that Claimant was a poor risk for long-term analgesic use.

Because of the lack of documentation, the ALJ does not know whether the various medications have enhanced Claimant’s ability to return to and retain work, or have promoted her recovery. As Dr. Harney noted, there is no documentation noting Claimant’s responses to the various medications. The record does not even indicate how long Claimant was taking the medications. The ALJ is concerned that Claimant may have been continuously prescribed the various medications with little or no review as to their efficacy and possible adverse effects. The documentation submitted is simply insufficient to prove that the medications prescribed were medically necessary for the treatment of Claimant’s compensable injury. Therefore, the ALJ concludes that Petitioner is not entitled to reimbursement.

IV. FINDINGS OF FACT

  1. Claimant____ suffered a compensable injury on______, when she picked up a box weighing more than 40 pounds and felt something pull.
  2. Claimant’s employer at the time was insured for workers’ compensation claims by Insurance Company of the State of Pennsylvania (the Carrier).
  3. Claimant complained of pain in her lower back, abdomen, and left shoulder.
  4. Claimant underwent surgical repair for an abdominal hernia on May 30, 1997. Her back complaints persisted.
  5. She also complained of pain in her neck, but a Commission hearings officer determined in October 1999 that Claimant did not suffer a compensable injury to her cervical area on__________.
  6. At issue are medications Claimant received from November 9, 2000, through February 19, 2001BHydrocodone, Ambien, Imitrex, Celebrex, Effexor, and SonataBwhich were prescribed by C.M. Schade, M.D., an anesthesiologist and pain management specialist.
  7. Hassle Free Pharmacy Services (Petitioner) submitted a request for reimbursement for the medications at issue.
  8. Carrier denied the request for reimbursement based on a peer review conducted by William C. Watters, III, M.D., an orthopedic surgeon. Dr. Watters concluded that the medications were not medically reasonable and necessary because “any soft-tissue injury sustained by the lifting event at work on _____ would have been long ago healed” and because “her current diagnosis is obscure.” Carrier also denied the charges for not being related to the compensable injury.
  9. Petitioner filed a request for medical dispute resolution with the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission). Concluding that medical necessity was not established because the documentation did not adequately show what treatment Claimant received prior to the request for medications, the MRD upheld the Carrier’s denial.
  10. On June 13, 2002, Petitioner filed a timely request for a hearing before the State Office of Administrative Hearings. Notice of hearing was issued by the Commission on July 11, 2002.
  11. There are no medical records from Dr. Schade documenting his treatment of Claimant for the compensable injury.
  12. The medical record fails to address the degree to which Dr. Schade was actually treating Claimant’s cervical pain.
  13. The medical record fails to address the degree to which Claimant’s lower back pain was due to her _____ injury and degenerative disc disease.
  14. There is no documentation noting Claimant’s responses to the various medications.
  15. There is no documentation indicating how long Claimant was taking the medications.
  16. The documentation submitted is insufficient to prove that the medications prescribed were medically necessary for the treatment of the Claimant’s compensable injury.
  17. The medications prescribed were not reasonable or necessary for Claimant’s myofascial injury of_____.
  18. There is no indication that the use of the medications in question enhanced Claimant’s ability to return to and retain work or that they promoted her recovery.

V. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, Tex. Labor Code Ann. § 413.031.
  2. 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 and 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
  3. Proper and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 & 2001.052.
  4. Petitioner had the burden of proof in this matter. 28 Tex. Admin. Code (TAC) § 148.21(h) and (i).
  5. Petitioner failed to provide documentation establishing that the medications prescribed were necessary for the compensable injury, were effective, and were not duplicative. Ground Rules (c)(1)(E) and (2)(A) and (e)(3), 28 TAC § 134.1001
  6. Petitioner failed to show that the medications prescribed were adequately documented, evaluated for effectiveness and modified based on clinical changes, and were objectively measured and demonstrated functional gains. Ground Rule (e)(2)(A), 28 TAC § 134.1001.
  7. Petitioner failed to meet its burden of proving that Hydrocodone, Ambien, Imitrex, Celebrex, Effexor, and Sonata were medically necessary and reasonably required for the treatment of Claimant’s compensable injury within the meaning of Tex. Labor Code Ann. §§ 408.021.
  8. Based on the foregoing, Petitioner’s request for reimbursement should be denied.

ORDER

IT IS THEREFORE, ORDERED that Hassle Free Pharmacy Service’s request for reimbursement for medications provided to Claimant from November 9, 2000, through February 19, 2001, is denied.

Issued January 28, 2003.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

KATHERINE L. SMITH
Administrative Law Judge

  1. 28 Tex. Admin. Code § 134.1001.
  2. An impairment rating of 17% was provided by Michael Shippy, D.C. on November 5, 1997. Another impairment rating of 14% was provided by Margaret Cunningham, D.C. on January 15, 1998. Petitioner’s Ex. 3 at 80-90 and 93-97. Of the 17% impairment, 8% was attributable to the lumbar area. Id. at 94.
  3. Which is Hydrocodone and Acetaminophen.
  4. Petitioner no longer argues for reimbursement for the Ambien, Imitrex, and, Effexor.
End of Document
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