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November 26, 2002


November 26, 2002



Highpoint Pharmacy (Petitioner) appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (TWCC) which denied reimbursement from______., (Carrier) for prescription medication, Vioxx, provided to Claimant ___The only issues are whether the prescription was medically necessary and reasonable.

As set out below, the Administrative Law Judge (ALJ) finds that the prescription was both medically necessary and reasonable and that reimbursement of $90.57 is due to Petitioner. The particular facts and reasoning in support of this decision are set forth below in the Findings of Fact, and the legal conclusions derived from those facts appear in the Conclusions of Law.[1]

ALJ Suzanne Marshall convened the hearing on September 30, 2002, at the State Office of Administrative Hearings, William Clements Building, 300 West 15th Street, Austin, Texas. The hearing concluded and the record closed on that date. Nicky Otts represented Petitioner and appeared by telephone. Steve Tipton, attorney, represented Carrier.


The issue presented in this proceeding is whether the Carrier should reimburse Petitioner $90.57, plus interest, for the cost of filling a prescription of Vioxx, an anti-inflammatory drug. Petitioner argued that Claimant’s treating physician prescribed the medication to relieve the pain and swelling resulting from the injury. The Carrier argued that the Petitioner failed to establish medical necessity for the prescribed medication and that the medication could have contributed to two*8740 hospitalizations for chest pain.

The thirty-page certified record of the Medical Review Division (MRD) of the TWCC proceeding was received into evidence. TWCC Ex. 1. At the hearing, the parties submitted additional documentation which was admitted into evidence. Petitioner submitted a three-page History, Physical and Neurological Examination by Dr. Jacob Rosenstein, Claimant’s treating physician, dated April 18, 2001 (Pet. Ex. 1); a three-page Follow Up by Dr. Rosenstein, dated May 30, 2001 (Pet. Ex. 2); a one-page Follow Up by Dr. Rosenstein, dated May 14, 2001 (Pet. Ex. 3); and a three-page Follow Up by Dr. Rosenstein, dated July 2, 2001 (Pet. Ex. 4).

Carrier submitted a TWCC-62 form, “Notice of Medical Payment Dispute,” dated July 18, 2001 (Resp. Ex. 1); a four-page Medical Record Review by Dr. Mark Parker dated July 17, 2001, with addendums (Resp. Ex. 2); a TWCC-21 form, “Payment of Compensation or Notice of Refused/Disputed Claim,” dated July 16, 2001 (Resp. Ex. 3); and a one-page report of a cervical spine examination by Dr. Richard Suss, dated June 29, 2001 (Resp. Ex. 4).[2]


Claimant, _____worked for ______as a deli clerk and was injured on______, when she tried to catch a box of chicken, weighing approximately forty-eight pounds, that fell from a shelf onto a cart. After being treated by her family physician, Dr. Craig Henry, she was referred by Dr. Henry to Dr. Jacob Rosenstein for a neurological evaluation. Dr. Rosenstein first saw Claimant on April 18, 2001, and performed a physical and neurological examination of her. At that time, Dr. Rosenstein prescribed hydrocodone, Vanadom (a muscle relaxant), and Celebrex, an anti-inflammatory, for her pain and tenderness. He prepared a treatment plan for Claimant and recommended follow-up x-rays and diagnostic tests. (Pet. Ex. 1)

On May 14, 2001, Dr. Rosenstein again saw Claimant. During this visit, Dr. Rosenstein discontinued the use of Celebrex due to Claimant’s lower extremity edema. Dr. Rosenstein recommended that Claimant contact Dr. Craig Henry for evaluation of the edema. (Pet. Ex. 3) On May 30, 2001, Claimant was seen by Dr. Rosenstein and complained of severe pain. Dr. Rosenstein noted that Claimant was no longer taking Celebrex and recommended again that Claimant consult Dr. Henry for the lower extremity edema. Dr. Rosenstein prescribed Vioxx, an anti-inflammatory, and advised Claimant to contact Dr. Henry to make certain that he did not object to her taking the Vioxx. (Pet. Ex. 2, p. 2)

Claimant was admitted to the hospital on June 6, 2001, and again on June 11, 2001, complaining of chest pain. (TWCC Ex. 1, p. 24) On July 2, 2001, Dr. Rosenstein prescribed Naproxen, an anti-inflammatory, for Claimant instead of continuing the Vioxx. (Pet. Ex. 4) On July 27, 2001, Dr. Rosenstein wrote a letter of medical necessity related to the Vioxx prescription. Because Claimant was symptomatic with cervical radiculopathy, Dr. Rosenstein prescribed Vioxx as an anti-inflammatory for pain on June 25, 2001.. The letter stated that Vioxx was both reasonably and medically necessary for Claimant’s condition and a direct result of the_______, on-the-job injury. (TWCC Ex. 1, p. 11)

Carrier’s evidence consisted of numerous written documents prepared by Dr. Mark Parker, a physician with Review Med, L.P. Dr. Parker’s practice specialty is not apparent in the documentation. Although the documents indicate that they are peer reviews, Carrier did not deny compensation for the prescription in question using “peer review” as its denial code, but, rather, on the basis that the prescription was not medically necessary.[3] The “peer reviews” of Dr. Parker, however, do address the issue of whether the Vioxx was medically necessary and will be considered as evidence on this point.

Dr. Parker’s first assessment of Claimant’s treatment is dated July 4, 2001, and is titled, “Second Opinion Consultation Addendum.” (TWCC Ex. 1, p. 27) This document refers to a review by Dr. Parker of additional medical records. The original document, to which the addendum is presumably adding, is not part of the record. In the Addendum, Dr. Parker concluded that he would not be able to say that Claimant’s cervical spine complaints are not, at least in part, related to the incident on______. He also states that there is no indication that Claimant’s problems with peripheral edema and cardiopulmonary concerns requiring hospitalization are related to the work injury of_____.

However, on July 17, 2001, Dr. Parker submitted a “Peer Review” in which he discusses, among other things, Claimant’s two hospitalizations. Dr. Parker noted that during Claimant’s second hospitalization, Dr. Shah, a consultant, “opined that her fluid overload was possibly secondary to a combination of nonsteroidal antiinflammatory drugs as well as Actos and should improve with diuresis.” (TWCC Ex. 1, pp. 24-25) According to Dr. Parker, Dr. Collini, a urological consultant who examined Claimant while in the hospital, stated that it was difficult to determine the etiology of the fluid retention “but it could be secondary to Vioxx or BuSpar or a neurogenic bladder secondary to her diabetes mellitus.” (TWCC Ex. 1, pp. 24-25) Dr. Parker concluded that, while the patient had significant preexisting disease, he was concerned about the continued use of nonsteroidal anti-inflammatories since at least one doctor, Dr. Shah, recommended that they be discontinued. He also stated that since Dr. Rosenstein has elected to continue the Claimant on them, it implied that Dr. Rosenstein does not agree that there is a risk. (TWCC Ex. 1, p. 25)

On July 18, 2001, Dr. Parker wrote a letter to Dr. Shah requesting his opinion “regarding the medical probability that [Claimant’s] worsening congestive heart failure was as a complication of the medication treatment for her . . . injury or an ordinary disease of life.” (Resp. Ex. 2) The record contains no response by Dr. Shah.

On July 20, 2001, Dr. Parker referenced a phone conversation with Dr. Craig Henry, Claimant’s family physician about Claimant’s two hospitalizations in June for cardiopulmonary problems. According to Dr. Parker, Dr. Henry stated that a workup revealed that Claimant had an interstitial pulmonary abnormality and that this, and the fluid retention, were probably related to the tumor multiple myeloma that had been discovered. Dr. Henry’s opinion, according to Dr. Parker, was that while Vioxx may have been a factor in the hospitalizations (as well as Actos, which Dr. Henry had prescribed for Claimant’s diabetes mellitus), it “was certainly not the sole precipitating cause of her required hospitalization.”(TWCC Ex.1, p.22)

The ALJ finds that Petitioner has established, through the documentation of Dr. Rosenstein, Claimant’s treating physician for the worker’s compensation injury, that the Vioxx prescription was medically reasonable and necessary since Claimant was suffering from pain as a result of her injury and the medication relieved the inflammation and resulting pain.[4] Due to Claimant’s extensive medical condition, the evidence does not establish that the use of Vioxx caused harm to Claimant or was a primary cause of her hospitalizations. The documentation provided by Dr. Parker, citing other doctors’ records, is inconclusive on this point. Dr. Parker’s conclusion that Dr. Rosenstein did not agree there was a risk to Claimant from using Vioxx is not supported by the evidence.

The ALJ finds that Dr. Rosenstein attempted to treat Claimant with an anti-inflammatory due to her pain and was responsive to Claimant’s medical conditions by changing the the prescription (from Celebrex to Vioxx to Naproxen) as needed. Neither Dr. Rosenstein nor Dr. Henry, Claimant’s treating physicians, believed that it could be concluded that Vioxx was the cause of Claimant’s hospitalizations. Based upon the evidence in this case, the ALJ concludes that the Petitioner’s claim should be granted.


  1. On_______, Claimant suffered a compensable injury to her left scapular area while trying to catch a 48-pound case of chicken falling from a heightened shelf.
  2. Claimant’s injury is covered by worker’s compensation insurance held by ________certified self-insured.
  3. Dr. Jacob Rosenstein, Claimant’s treating physician for the worker’s compensation injury, prescribed Vioxx, an anti-inflammatory medication for pain, on June 25, 2001.
  4. Claimant was suffering from pain and inflammation as a result of her injury.
  5. Claimant’s medical condition resulting from the compensable injury warranted the use of an anti-inflammatory.
  6. The medication Vioxx relieved the inflammation and pain resulting from Claimant’s injury.
  7. Highpoint Pharmacy (Petitioner) filled the prescription referred to in Finding of Fact No. 3.
  8. Petitioner submitted its charges for the Vioxx medication to the Carrier, totaling $90.57.
  9. Carrier denied payment of the charge on the ground that the medication was not medically necessary.
  10. Petitioner requested dispute resolution by the Texas Worker’s Compensation Commission Medical Review Division (MRD) on October 16, 2001, seeking reimbursement for the medication.
  11. On May 17, 2002, the MRD issued a decision denying reimbursement for the Vioxx medication, stating that medical necessity had not been established.
  12. On June 10, 2002, Petitioner appealed the MRD’s decision.
  13. On July 15, 2002, the Commission sent a notice of hearing to the parties. The notice contained a statement of the time and place of the hearing; a statement of the legal authority
  14. and jurisdiction under which the hearing was to be held; a reference to the particular section of the statutes and rules involved; and a short plain statement of the matters asserted.


  1. The Texas Worker’s Compensation Commission (TWCC) has jurisdiction to decide the issues presented pursuant the Texas Worker’s Compensation Act (the Act), Tex. Labor Code Ann§413.031.
  2. The State Office of Administrative Hearings has jurisdiction over matters related to this proceeding, including the authority to issue a decision and order, pursuant to§ 413.031(d) of the Act; Tex. Govt. Code Ann. ch. 2003; and 28 Tex. Admin. Code chs. 148-49.
  3. Petitioner timely appealed the Medical Review Division’s (MRD) decision. 28 Tex. Admin. Code §148.3.
  4. As the party appealing the MRD decision, the Petitioner has the burden of proof in this matter, pursuant to 28 Tex. Admin. Code § 148.21(h).
  5. 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. The employee is specifically entitled to health care that:
  6. (1)Cures or relieves the effects naturally resulting from the compensable injury;
  7. (2)Promotes recovery; or
  8. (3)Enhances the ability of the employee to return to or retain employment
  9. Since the prescriptions at issue were prescribed and filled before March 1, 2002, the Medical Fee Guideline for Medical Treatments and Services is applicable. 28 Tex. Admin. Code § 134.500(b).
  10. Based on Findings of Fact Nos. 3 through 6, the prescription of Vioxx by Claimant’s treating physician was medically reasonable and necessary.
  11. Petitioner is entitled to reimbursement for the prescription under Tex. Labor Code §§ 413.015 and 408.021(a)..
  12. The Carrier should reimburse the Provider for the prescription filled for Claimant on June 25, 2001, in the amount of $90.57, plus interest.


IT IS ORDERED THAT the High Point Pharmacy’s request for reimbursement of $90.57, plus interest, from the Carrier is granted and_________., is ORDERED to reimburse Highpoint Pharmacy this amount.

Signed this 26th day of November, 2002.


Administrative Law Judge

  1. These types of cases are especially difficult. Here, the pharmacy filled a prescription that was issued by a physician who is treating the Claimant for her worker’s compensation injury. The Carrier’s dispute over whether the medication is reimbursable really relates to whether, and with what amount of supporting documentation, the treating physician should have prescribed the medication in the first place. The pharmacy is merely the means of delivery of the medication to the patient. It is caught between the proverbial rock and hard place: if the pharmacist fills the prescription, the pharmacy runs the risk that is will not be reimbursed by the Carrier; if the pharmacist makes substantive decisions about whether or not the medication should have been prescribed at all, or, as in this case, whether another medication may have been better suited to Claimant, the pharmacist may be accused of practicing medicine without a license. Because medical necessity for prescriptions must be adequately demonstrated, a Carrier is entitled to receive enough documentation so that it can make a reasoned judgment about the medical necessity for the prescription. In this case, a de minimis letter of medical necessity was provided to Carrier originally. This letter alone did not establish medical necessity and the Carrier understandably denied payment. At the hearing, however, a more complete record supporting medical necessity was admitted into evidence.
  2. Although Carrier submitted these forms as additional documentary evidence, each Exhibit was already part of the Certified Record. See TWCC Ex. 1, pp. 19-26, 28.
  3. Consequently, Carrier is prohibited from asserting the basis of “peer review” for its denial at this hearing. See 28 Tex. Admin. Code (TAC§ 133.304(c).
  4. The ALJ notes that the additional documentation from Dr. Rosenstein provided at this hearing was not submitted to the MRD hearing officer.
End of Document