Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Title:
453-03-0083-m5
Date:
December 19, 2002
Status:
Retrospective Medical Necessity

453-03-0083-m5

December 19, 2002

DECISION AND ORDER

Hassle Free Pharmacy Services (Petitioner) appealed the Findings and Decision of the Medical Review Division (MRD) of the Texas Worker’s Compensation Commission (Commission) which denied reimbursement from United States Fire Insurance Co. (Carrier) for prescription medication, Prozac, 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 $363.44, plus interest, is due to Petitioner.[1]

I. Jurisdiction, Notice, and Procedural History

The Texas Worker’s Compensation Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (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 Ann. ch. 2003.

The Commission’s Medical Review Division (MRD) issued its decision June 24, 2002. Petitioner filed a timely request for hearing on July 22, 2002. Proper and timely notice of the hearing was issued September 13, 2002. The hearing was convened on October 30, 2002, with the undersigned Administrative Law Judge (ALJ) presiding. The hearing concluded and the record closed on that date. Peter Rogers, attorney, represented Petitioner and appeared by telephone. Steve Tipton, attorney, represented Carrier.

II. Legal Standards

The applicable legal standards are found in sections 408.021 and 401.011 of the Texas Labor Code. Section 408.021 states:

  1. (1)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:
  2. (1)cures or relieves the effects naturally resulting from the

compensable injury;

  1. (1)promotes recovery; or
  2. (1)enhances the ability of the employee to return to or retain

employment.[2]

Section 401.11(19) defines “health care” to include “all reasonable and necessary medical aid, medical examinations, medical treatments, medical diagnoses, medical evaluations, and medical services.”

The Commission’s Spine Treatment Guideline, though abolished as of January 1, 2002, was in effect at all times relevant to this case. The Guideline provided that treatment of a work related injury be adequately documented. 28 Tex. Admin. Code § 134.10019e)(2)(A)(West 2002)(abolished by statute effective January 1, 2002).

III. Evidence

The issue presented in this proceeding is whether the Carrier should reimburse Petitioner $363.44, plus interest, for the cost of filling two prescriptions for Prozac, an anti-depressant drug, on November 3 and 8, 2000. Petitioner’s argument is that Claimant’s treating physician prescribed the medication for depression that resulted from two failed back surgeries; thus, it was medically reasonable and necessary. Petitioner also argued that, at the time the medication was prescribed for Claimant, there was no Commission rule requiring a letter of medical necessity for the prescription and that the letter of medical necessity provided by the treating physician met existing standards. The Carrier argued that the letter of medical necessity furnished by the treating physician did not establish medical necessity and consequently, the MRD decision should be upheld.

The thirty-five page certified record of the Medical Review Division (MRD) of the Commission proceeding was received into evidence. (TWCC Ex. 1) At the hearing, the Carrier submitted additional documentation which was admitted into evidence: a letter dated June 3, 1999, from Dr. Robert Winans[3] who performed an independent medical evaluation of Claimant on May 28, 1999, (Carrier Ex. 1), and a letter dated November 15, 1999, from Dr. Thomas S. Padgett (Carrier Ex. 2). Dr. Winans found that an anti-depressant may be indicated for Claimant, but suggested that chronic use of an anti-depressant such as Prozac should be supported by psychological or psychiatric information. (Carrier Ex. 1, p. 7). Dr. Padgett also noted that depression is a reasonable complication of the claimant’s injury and treatment, but stated that the continued use of Prozac should be supported by psychiatric evaluation. (Carrier Ex. 2, p. 1)

Petitioner introduced the testimony of Dr. Daniel Boudreau, Claimant’s treating physician since 1998.[4] Prior to becoming a patient of Dr. Boudreau’s, Claimant was treated by Dr. Frost, who originally diagnosed the depression and began treating Claimant with Prozac, among the other treatment provided to Claimant.[5] Dr. Boudreau testified that he had maintained Claimant on the medications prescribed by Dr. Frost initially and tried other medications in an attempt to minimize the medications needed to treat Claimant. He testified that Claimant was suffering from depression related to chronic back pain resulting from both the compensable injury and two failed back surgeries.

Claimant’s last surgery in 1992 consisted of a fusion in the lumbar spine.[6] Dr. Boudreau testified that he has treated many patients who have undergone unsuccessful back surgeries and that, based upon his experience, approximately 99.9% of those patients will develop depression, caused by their pain. He has not referred Claimant to a psychiatrist for a consultation, nor has he felt it necessary to do so. According to Dr. Boudreau, the use of the anti-depressant Prozac helps reduce Claimant’s perception of her pain and consequently, allows a lower dosage of pain medication. Dr. Boudreau noted that because he is concerned that a patient may become a habitual user of narcotic pain medication, it was his medical judgment to continue Claimant on Prozac, which has not been found to be habituating.

IV. Discussion

Claimant, _____worked for__________. She suffered a compensable lower back injury on_____________. A fusion in her lumbar spine was performed on Thanksgiving Day of 1992, by Dr. Bodley[7] (Carrier Ex. 1). She began seeing Dr. James Frost in 1995. He began treating Claimant’s persistent low back pain and prescribed, among other medications, Prozac. Dr. Daniel Boudreau became her treating physician in 1998.

The ALJ finds that Petitioner has established, through the testimony of Dr. Boudreau, that the Prozac prescription was medically reasonable and necessary because Claimant was suffering from depression as a result of her injury and the medication both relieved the depression and resulted in a decreased need for narcotic pain medications. Although Carrier’s reviewing doctors believed that a psychiatric evaluation would be appropriate, neither disputed that Claimant is suffering from depression and that an anti-depressant might be indicated. Their testimony, taken as a whole, merely establishes that it might be better medical practice to refer Claimant for a psychiatric evaluation, considering the extended use of Prozac. It does not demonstrate that such an evaluation is required.

Based upon the evidence in this case, the ALJ concludes that the Petitioner’s claim should be granted.

V. Findings of Fact

  1. On_________, Claimant suffered a compensable lower back injury.
  2. Claimant’s injury is covered by worker’s compensation insurance provided by her employer, _________, and carried through United States Fire Insurance Company.
  3. Claimant had lumbar fusion surgery in 1992 to treat her compensable injury.
  4. Claimant continues to suffer from persistent low back pain.
  5. Claimant suffers from depression relating to the injury and previous surgeries to treat the injury.
  6. Dr. James Frost, Claimant’s treating physician for the worker’s compensation injury, prescribed Prozac, an anti-depressant, for Claimant in May of 1995.
  7. Dr. Daniel Boudreau became Claimant’s treating physician in 1998.
  8. Dr. Boudreau continued the prescription for Prozac to relieve the effects of Claimant’s injury.
  9. Claimant’s medical condition resulting from the compensable injury warranted the use of an anti-depressant.
  10. The medication Prozac relieved the Claimant’s depression resulting from her injury and the effects of her back surgeries.
  11. By using the medication Prozac, Claimant is able to tolerate a reduced dosage of narcotic pain medication, because her perception of pain intensity is lessened by the Prozac.
  12. Hassle Free Pharmacy Services (Petitioner) filled two prescriptions for Prozac, prescribed by Dr. Boudreau, on November 2 and 8, 2000.
  13. Petitioner submitted its charges for the Prozac medication to the Carrier, totaling $ 363.44, on November 14, 2000.
  14. Carrier denied payment of the charge on the ground that the medication was not medically necessary.
  15. Petitioner requested reconsideration of Carrier’s decision; Carrier again denied the request to reimburse the Prozac prescriptions.
  16. Petitioner requested dispute resolution by the Texas Worker’s Compensation Commission Medical Review Division (MRD) on October 31, 2001, seeking reimbursement for the medication.
  17. Carrier did not submit a response to the request for medical dispute resolution.
  18. On June 24, 2002, the MRD issued a decision denying reimbursement for the Prozac medication, stating that medical necessity had not been established in the letter of medical necessity completed by Dr. Boudreau, dated January 29, 2001.
  19. On July 22, 2002, Petitioner appealed the MRD’s decision.
  20. On September 13, 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
  21. 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.

VI. Conclusions of Law

  1. The Texas Worker’s Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant the Texas Worker’s Compensation Act (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 and Tex. Govt. Code Ann. ch. 2003.
  3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052.
  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. Based on Findings of Fact Nos. 4, 5, 8, 9, 10, and 11, the prescription of Prozac by Claimant’s treating physician was medically reasonable and necessary.
  6. Petitioner is entitled to reimbursement for the prescription under Tex. Labor Code §§ 413.015 and 408.021(a).
  7. The Carrier should reimburse the Provider for the prescriptions filled for Claimant on November 2 and 8, 2000, in the amount of $ 363.44, plus interest.

ORDER

IT IS ORDERED THAT the Hassle Free Pharmacy Services’ request for reimbursement of $363.44, plus interest, from the Carrier is granted and United States Fire Insurance Co., is ORDERED to reimburse Hassle Free Pharmacy Services this amount.

Signed this 19th day of December, 2002.

STATE OFFICE OF ADMINISTRATIVE HEARINGS

SUZANNE FORMBY MARSHALL
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 an injury covered by worker’s compensation insurance. The Carrier’s dispute over whether the medication is reimburseable 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 by which the medication is delivered 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 it will not be reimbursed by the Carrier; if the pharmacist makes substantive decisions about whether or not the medication is medically necessary, they 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 from the treating physician so that it can make a reasoned judgment about the medical necessity for the prescription. In this case, a de minimis form letter of medical necessity was provided to Carrier originally. This letter alone did not establish medical necessity, and the Carrier justifiably denied payment for the prescription in question. At the hearing, however, the testimony of the prescribing physician, Dr. Daniel Boudreau, provided a more complete record that supported the conclusion that Prozac was medically necessary.
  2. Tex. Lab. Code §' 408.021(a)(3) is not relevant to this proceeding as Claimant is permanently disabled and unable to return to work.
  3. Dr. Winans is a Diplomate of the American Board of Orthopaedic Surgery.
  4. Carrier objected to Dr. Boudreau’s testimony supporting the medical necessity of the Prozac medications on the basis that Petitioner was limited to the contents of the letter of medical necessity in its burden of proof. Petitioner is correct that Commission Rule 134.502 was not in effect at the time the letter of necessity in this case was written. The ALJ believes that the Spine Treatment Guidelines relating to medical necessity are applicable. 28 TAC§ 134.1001(e)(4). The letter of medical necessity does not sufficiently demonstrate medical necessity, under the Spine Treatment Guidelines. However, the testimony was allowed and the ALJ finds that the testimony of Dr. Boudreau, as well as the evidence submitted by Carrier, demonstrates that there existed medical necessity for the prescriptions of Prozac at the time they were prescribed. The ALJ is not persuaded that the Petitioner must be limited, in carrying its burden of proof, to evidence consisting solely of a letter of medical necessity prepared by someone else. While it is unusual in these types of cases to have the benefit of the prescribing doctor’s testimony, it is very helpful. The ALJ believes that the pharmacy (Petitioner in this case) can support the letter of medical necessity with other evidence, just as the Carrier is allowed to introduce other evidence not presented at the MRD proceeding to support its original basis for a claim denial at the hearing before the State Office of Administrative Hearings.
  5. Both Drs. Frost and Boudreau diagnosed Claimant with lumbar post-laminectomy syndrome, in addition to depression. Carrier Ex. 1, p. 3.
  6. Claimant had received a 13% permanent partial impairment rating by Dr. Jeffrey Cantrell in June of 1994. Claimant is disabled and unable to work. Carrier Ex. 1, pp. 2-3.
  7. Claimant underwent a previous back surgery in 1986, although the record does not provide much information about the first back surgery.
End of Document
Top