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At a Glance:
April 3, 2003
Retrospective Medical Necessity


April 3, 2003


Hassle Free Pharmacy Services (Petitioner) appealed the findings and decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) which denied reimbursement from Continental Casualty Company (Carrier) for prescription medications provided to Claimant___. The only issue is whether the prescriptions were medically necessary. This decision and order finds that the prescriptions were not medically necessary and that reimbursement is not owed to Petitioner.[1]

I. Jurisdiction, Notice, and Procedural History

There were no contested issues of jurisdiction or notice. Therefore, those issues are addressed in the Findings of Fact and Conclusions of Law without further discussion here.

On February 4, 2003, ALJ Suzanne Marshall convened the hearing in this matter at the State Office of Administrative Hearings (SOAH), William Clements Building, 300 West 15th Street, Austin, Texas. The hearing concluded and the record closed on that date. Attorney Peter Rogers

represented Petitioner and appeared by telephone. Respondent Continental Casualty Insurance Company (Carrier) was represented by attorney James Loughlin.

II. Discussion


Claimant, ____ suffered a compensable injury on__________, while she was cleaning trash from a drywall track in her job as a _________. As Claimant stood up from a squatting position, she reported back pain. She was first seen at the Denton Regional Medical Center emergency room on the date of injury. Claimant began treatment with Dr. Edward Wolski on December 3, 1998. Petitioner seeks reimbursement for a number of prescriptions prescribed by Dr. Wolski in 2001, three years after the date of injury.[2] The prescriptions were for Hydro/APAP, SOMA, Promethazine, Lortab, Diazepam, PropoxyN/APAP, Prevacid, Neurontin, Parafen Forte, and Chilorzoxazone.

Legal Standards

The Ground Rules to the Spine Treatment Guideline (STG) (which was in effect during the time covered in this case) provide that treatment of a work-related injury must be:

  1. (1)adequately documented;
  2. (2)evaluated for effectiveness and modified based on clinical changes;
  3. (3)provided in the least intensive setting;
  4. (4)cost effective;
  5. (5)consistent with this guideline or contain a documented clinical rationale for deviation from this guideline;
  6. (6)objectively measured and demonstrate functional gains; and
  7. (7)consistent in demonstrating ongoing progress in the recovery process by appropriate re-evaluation of the treatment. STG (e)(2)(A).

Further, Ground Rule (e)(3) of the Spine Treatment Guidelines states that the elements of the documentation may include:

  1. (1)a description of the injury, including the events surrounding that injury and the extent and severity of that injury;
  2. (2)a description of any pre-existing condition(s), complicating conditions, and/or any non-related conditions;
  3. (3)a treatment plan, including proposed methods of treatment, expected outcomes, and probate duration of treatment;
  4. (4)updates to the treatment plan as needed, including the clinical progress of the injured employee and any revisions needed to the treatment plan based on the injured employee’s response to treatment;
  5. (5)educational information provided to the injured employee regarding his or her injury and treatment plan, and the injured employee’s compliance with this treatment plan; and
  6. (6)objective documentation substantiating the need for deviation from the guideline, if needed.

C. Medical Necessity


The issue presented in this proceeding is whether the Carrier should reimburse Petitioner $787.53, plus interest, for the cost of filling numerous prescriptions from February 26, 2001, through May 16, 2001. Petitioner contends that the prescriptions were medically necessary to treat Claimant’s severe and debilitating pain. Respondent asserts that the prescriptions were not medically necessary to treat Claimant’s condition and that Claimant is addicted to pain medication.

Petitioner’s Exhibits 1 through 9, consisting of excerpts from Claimant’s medical records and the 89-page certified record of the MRD proceeding, were admitted into evidence.[3] Respondent’s Exhibit 1, consisting of 504 pages of Claimant’s medical records, was admitted into evidence. Petitioner called Dr. Edward Wolski as a witness; Carrier called Dr. Samuel Bierner as a witness.


On__________, Claimant was injured while cleaning out a drywall track. She originally sought treatment at the Denton Regional Medical Center emergency room and was diagnosed with acute sciatica, given a prescription, and released. Res. Ex. 1, pp. 46-53. Notes from the hospital’s Occupational Medicine department indicate that, at the time of the injury, Claimant was taking Lortab from her mother’s prescription.[4] Res. Ex. 1, p. 56.

Claimant began treating with Dr. Edward Wolski on December 3, 1998. Dr. Wolski received his medical degree from the University of Toronto medical school and has practiced medicine for 22 years. He is a Fellow of the American Academy of Family Practice and is board certified by the American Board of Pain Management. His medical practice consists of pain management and family practice. He treats many patients for workers’ compensation injuries.

During Claimant’s first visit to Dr. Wolski, a physical examination was performed and the range of motion for Claimant’s lumbar spine was measured. Res. Ex. 1, pp. 61-62. Dr. Wolski prescribed physical therapy, electrical stimulation, phonophoresis, aquatic therapy, and range of motion testing. Res. Ex. 1, p. 64. He also ordered a lumbar x-ray. Res. Ex. 1, p. 60. Claimant was diagnosed with low back pain and sciatica and Dr. Wolski estimated that it could take up to eight weeks for her to get better. Res. Ex. 1, p. 58. He prescribed Lortab, a pain medication, and SOMA, a muscle relaxant, on that date. Dr. Wolski testified, and the medical records reflect, that he treated Claimant with physical therapy, muscle relaxants, and pain medications.

Claimant regularly saw Dr. Wolski and continued to complain of severe back pain, which did not decrease in severity for the next three years, despite numerous injections, physical therapy, use of TENS unit, and continued medications. During the course of her treatment, Claimant also received numerous x-rays, discograms, myleograms, and other tests, to assist in diagnosing her persistent complaints of back pain. Dr. Wolski later diagnosed Claimant as suffering from L5-S1 radiculopathy. Res. Ex. 1, p. 67.

Dr. Wolski described the specific drugs that are challenged by the carrier as follows: Lortab is a class 3 narcotic that was prescribed for moderately severe pain; SOMA was prescribed as a muscle relaxant; Promethazine (phenergan) was prescribed for nausea secondary to the pain medications and gastritis; Prevacid was prescribed for gastric distress; Diazepam (Valium) was prescribed as a muscle relaxant; Propoxy N/APAP is the same medication as Darvocet and was prescribed for pain. Hydrocodone (Hydro/APAP) is similar to Lortab and was prescribed for moderately severe pain. Neurontin is an anti-convulsant that was prescribed for chronic pain. Dr. Wolski stated that Parafon Forte and Chilorazoxazone were essentially the same thing, mild muscle relaxers.[5]

The prescriptions were described by Dr. Wolski as being medically necessary to relieve Claimant’s pain and allow her to perform the activities of daily living. Dr. Wolski stated that he was unable to reduce Claimant’s medication level because she was unable to perform the activities of daily living when the medications were reduced.

Dr. Wolski agreed that medications of this type are useful to treat acute pain, but he said that Claimant’s chronic pain did not respond so it was his opinion that she needed a longer course of therapy. Res. Ex. 1, pp. 261-266. Dr. Wolski stated that the use of Lortab and other pain medicines are appropriate in the treatment of chronic pain because they keep a patient comfortable and allow him or her to participate in physical therapy and continue daily activities. He said that over-the-counter analgesics, such as ibuprofen, Motrin, and Tylenol were not effective to control long-term pain.

Dr. Wolski’s treatment notes do not provide any explanation for Claimant’s reported increase in pain, especially given the objective findings on the numerous tests indicating minimal physical damage, or how the treatment he was prescribing was designed to address the pain. Instead, a steady course of pain medications continued to be extensively prescribed for Claimant.[6] There was no evidence that Dr. Wolski considered whether the prescriptions were having their intended results, evaluated the possible side effects of the medications on the Claimant, or took any precautions to address the side effects. Indeed, although the record indicates that Claimant was advised Lortab was extremely addictive, it continued to be prescribed for Claimant.[7] There is no indication in Claimant’s medical records that Dr. Wolski was aware of her past medical history, including her problems with addictive pain medications, or the extent to which, if any, it affected his treatment of her.

Dr. Wolski testified that he evaluated the treatment for effectiveness by asking the patient

to describe the pain through a pain drawing, indicating the severity of the pain at that time. Claimant consistently reported her pain level as severe, ranging from 8 out of 10 to 10 out of 10 on a 10-point scale, with 10 representing the worst possible pain. There is no indication in the treatment notes that Dr. Wolski attempted to substantiate the pain of Claimant or modified his treatment plan, if there was one, in response to the continued, persistent pain. During the period from December 4, 2000, through April 2, 2001, Claimant reported her pain at a maximum level of 10 on eleven occasions.[8]

During Dr. Wolski’s testimony, there was some discussion about whether he had prescribed some of the medications for which reimbursement was being sought.[9] Dr. Wolski disagreed with several of the bills for which reimbursement was sought, saying that there was a mistake or that he had not prescribed the medication. Dr. Wolski’s testimony casts significant doubt upon the accuracy of the bills.

In August of 2000, when Claimant had consistently failed to show any improvement, Dr. Wolski referred her to a pain management doctor, Dr. Gary Stubbs, for chronic pain management although he continued to remain Claimant’s primary treating physician. Res. Ex. 1, pp. 275, 279, 281, 282, 287-289. Dr. Wolski did not say why it took him so long to conclude that Claimant should be treated through a chronic pain management program. He noted that the medication levels were increased by Dr. Stubbs. Dr. Wolski agreed that the dosage of the medications prescribed by Dr. Stubbs seemed high and that he did not know the rationale for the treatment. He said that he trusted the Claimant to tell him what she medications she was getting from Dr. Stubbs and other doctors.

As Claimant’s treating physician, Dr. Wolski was responsible for the coordination of her medical care. During the time period in question, Drs. Wolski and Stubbs prescribed medications for Claimant. Dr. Wolski did not provide any evidence indicating how he coordinated the provision of Claimant’s treatment with Dr. Stubbs. The record is devoid of any recorded attempts to coordinate treatment with Dr. Stubbs or to verify the medications that were being prescribed in order to ensure that both doctors were not prescribing the same medications. Dr. Wolski’s reliance on Claimant’s reports of the medications that Dr. Stubbs prescribed for her was insufficient to carry out his responsibilities in coordinating her medical care. The medical records reflect that Dr. Stubbs would be responsible for prescribing pain medications for Claimant as of October 23, 2000, yet Dr. Wolski continued to prescribe them after that date. Res. Ex. 1, p. 300. The documentation in the medical records does not include a plan outlining the length of time Dr. Wolski intended to prescribe the medications and to what result. It also does not indicate that there were any functional gains in Claimant’s condition as a result of the medication treatment. The medical records also do not contain a treatment plan for Claimant, but are merely notes from office visits, results of x-rays and other tests, and reports filed with the Texas Workers’ Compensation Commission.

In April of 2000, Claimant was found to have reached maximum medical improvement. Dr. Wolski treated Claimant until October 10, 2001, when he released Claimant from his care.[10] Res. Ex. 1, pp. 498-499. Claimant did not return to work while under the care of Dr. Wolski.[11]

Although the period of time encompassed by this case is in 2001, Claimant’s medical history both before and after her compensable injury, is instructive. From a review of the evidence in this case, it appears that Claimant had suffered from lower back pain (similar to the type of pain reported as a consequence of the worker’s compensation injury) and anxiety for at least six months prior to the injury. The medical records reflect that Claimant was treated at Texoma Care for lower back pain extending down her left leg, left foot pain, and severe anxiety from May 4, 1998, through December 3, 1998. Res. Ex. 1, pp. 1-26. At that time, Claimant took, among other medications, Lortab and Xanax. The medical notes indicate that Claimant was advised to reduce her Xanax dose. Res. Ex. 1, p. 1. While being treated by Texoma Care, Claimant continued to report low back pain and anxiety. Res. Ex. 1, pp. 3, 4, 6. The medical records indicate concern by the medical personnel with the amount of Lortab and Xanax medications taken by Claimant and there are notations to “wean off” the Lortab and Xanax. Res. Ex. 1, pp. 5, 6, 7, 13, 14, 21. Claimant and pharmacies acting on her behalf made several calls to Texoma Care for refills of the Lortab and Xanax prescriptions which were refused by the office’s medical personnel. Res. Ex. 1, pp. 7, 8, 9, 13, 14,15, 17, 18. On August 18, 1998, Dr. Michael Duncan from Texoma Care diagnosed Claimant with a Xanax addiction. The medical notes indicate that Claimant had been taking Xanax three times a day for eight years. Res. Ex. 1, p. 16.

On November 18, 1998, Claimant went to the Denton Regional Hospital emergency room for a panic attack and was prescribed Xanax. Res. Ex. 1, pp. 28-34. She went to the Denton Community Hospital on November 27, 1998, for a migraine headache and received an injection of Demerol. Res. Ex. 1, pp. 37-44.

Dr. Samuel Bierner disputed Dr. Wolski’s claim of medical necessity for the prescriptions. He testified that he did not believe the prescriptions were supported by medical necessity. Dr. Bierner’s specialty is physical medicine rehabilitation. He has a certification in pain management and received his training at the University of Washington, which pioneered the practice of pain management. He has been board certified since 1990 and has a practice in Dallas consisting primarily of patients with injuries covered by workers’ compensation insurance. He has a certification in pain management. According to Dr. Samuel Bierner, the amount and type of medications prescribed for Claimant were not medically necessary and Claimant’s reports of pain were not supported by objective medical findings. Further, he believes the medical records demonstrate that Claimant is a drug addict.

Dr. Bierner testified that Claimant displayed several signs of a drug addict: drug addiction problems before the injury; inappropriate behavior such as taking her mother’s medications; requesting brand name drugs instead of generic (Res. Ex. 1, pp. 92, 292) because brand name drugs can be sold illegally and have a higher value than generic ones; being accident-prone; her treating doctor wants to discharge her (Res. Ex. 1, p. 326); and Claimant’s reports of pain are not supported by the objective physical findings from the office visits and x-rays.

According to Dr. Bierner, Claimant’s x-rays show a mild disc bulge at most. Dr. Bierner did not agree with Dr. Wolski’s diagnosis of radiculopathy nor with Dr. Cruz’ finding of a left S1 nerve root denervation process (radiculopathy).[12] Res. Ex. 1, pp. 107-108. He noted that a consultation with Dr. Michael Bolesta on May 17, 1999, resulted in a medical diagnosis that Claimant had a lumbar strain and lumbar or lumbosacral intevertebral disc. In his medical notes, Dr. Bolesta reported that Claimant displayed a manic affect, there was no indication of stenosis on the x-rays, and the Claimant was tearful and hostile. Dr. Bolesta said that surgery was unlikely and that pain management was appropriate. Res. Ex. 1, p. 149. Dr. Bierner noted that Claimant’s behavior during this consultation was indicative of someone who had problems with inappropriate drug use.

Dr. Bierner was critical of Dr. Wolski’s prescribing habits in this case, particularly because he believes the medical records show that Claimant is an addict and Dr. Wolski remained unaware of this condition despite the numerous signs displayed by Claimant and he did not consider Claimant’s drug problems in developing a treatment plan consisting of addictive medications for Claimant. Dr. Bierner stated that if the doctor was aware of Claimant’s history, he should have been less inclined to prescribe the particular drugs. In addition, he should have coordinated the provision of the drugs through a drug contract in which the patient agrees that she will only get medications from her treating doctor, won’t telephone requests for refills, and won’t go to the emergency room for drugs (See Res . Ex. 1, pp. 119-121; 135-137). In the event of a violation, the doctor would stop giving the drugs. There was no such contract between Dr. Wolski and Claimant.

Dr. Bierner was also critical of the amount of drugs being prescribed. He stated that the dosage level was too high. He said that the Lortab dosage was perhaps appropriate if Claimant had had spinal surgery which she had not. Additionally, he said that the Xanax dosage was high and could cause a sedative effect, particularly in combination with the Lortab. Dr. Bierner was also critical of the specific medications that were prescribed by Dr. Wolski and the reasons given for the choice of medications. For example, Dr. Bierner said that he had never prescribed MSIR, a morphine sulfate, in combination with Lortab and Xanax, for chronic back pain as Dr. Wolski did for Claimant.[13] He also stated that there was a risk of respiratory depression from these medications. Dr. Bierner testified that SOMA, a muscle relaxant, would boost the sedative and euphoric effects of Lortab, Xanax, and morphine. SOMA can lead to habituation, especially in conjunction with narcotics. Dr. Bierner was critical of the use of Promethazine (phenergen) prescribed for nausea since it is not used to treat NSAID-related gastric distress. The use of Diazepam (Valium) was also criticized by Dr. Bierner for long-term use since it is habit forming and more appropriate for short-term use. As for Neurontin, Dr. Bierner testified that it is used for peripheral chronic nerve pain. The Parafon Forte (Chilorzoxazone) is a muscle relaxant and is similar to SOMA in that it can have a sedating effect. It also has some habituation tendencies and is appropriate for short-term use for muscle spasms. According to Dr. Bierner, the side effects of the medications would themselves impair Claimant’s ability to work and that it would be difficult for her to operate machinery or work in a dangerous environment while on the medications prescribed by her doctor.

Dr. Bierner believes that Claimant’s drug problem is masquerading as a pain problem and that Claimant uses what she learns about her symptoms in order to elicit prescriptions. The ALJ finds this testimony especially credible given the medical history of Claimant which shows that, prior to her worker’s compensation injury, Claimant consistently complained of the same lower back pain and left foot pain and received the same types of medications that Dr. Wolski continued to prescribe for her.

Dr. Bierner testified that the treating doctor is in the best position to determine the reasonableness of the treatment and has the responsibility to document his treatment plan and findings in order to understand and support his rationale. In this case, Dr. Bierner noted, Dr. Wolski had deficiencies with documentation in the treatment notes and in the actual treatment and continued prescriptions of medications without appropriate findings. He was especially critical of Dr. Wolski’s reliance on the Claimant’s verbal (and pictoral) expressions of pain because of the high possibility of inaccuracy. Because pain is subjective, it is important to also rely on the behavioral model of pain, such as compliance with an exercise program and progress.

Dr. Bierner also disagreed with the diagnosis of L5-S1 radiculopathy. The record contains evaluations and consultations from other doctors whose diagnosis is consistent with that of Dr. Bierner’s. Res. Ex. 1, pp. 457, 452. 469. Subsequent tests indicated no significant abnormalities

in Claimant’s lower back.[14] On April 13, 2002, Dr. Dorothy Ann Leong stated that no further treatment was necessary. Res. Ex. 1, p. 535.[15] Dr. Leong’s medical specialty is in physical medicine and rehabilitation. She conducted an independent peer review of Claimant’s medical history and treatment, through a review of the medical records, pursuant to a request by the Carrier.[16]

Dr. Bierner concluded by saying that in his opinion, the drugs were not medically necessary to treat Claimant’s injury.

The ALJ finds that Dr. Bierner’s testimony is credible and believes that Claimant suffers from a drug addiction, engages in drug-seeking behavior, takes doses of medications in excess of that prescribed, consistently complains of extreme pain that exceeds any physical findings or explanation for it, and that the prescriptions in issue are not medically necessary to cure or relieve the effects of her compensable injury.

The ALJ believes that the course of Claimant’s treatment indicates that numerous health care professionals had concerns about her use of many and multiple narcotic medications, yet no one effectively addressed this issue or attempted to eliminate Claimant’s reliance upon them. The ALJ realizes that addictive medications cannot be stopped immediately, but that a patient must be weaned from them. Despite references in the record of the need to wean Claimant from her medications, there appears no real effort to do so.

Further, despite receiving numerous treatments, x-rays, injections, medications, and physical therapy, Claimant’s condition persisted with no real improvement. When the ongoing medical treatment from Dr. Wolski indicated that her condition was not improving, it was his responsibility to fashion a treatment plan to effectively address her condition and to modify it when necessary, based upon objective clinical findings. The referral to a chronic pain management program, though appropriate, came very late in the course of her treatment, almost two years after Claimant consistently failed to make progress toward recovery or to demonstrate improvement. Further, once Claimant was in a chronic pain management program, Dr. Wolski did not fulfill his responsibilities to coordinate the Claimant’s medical treatment from Dr. Stubbs.

At some point, enough is enough and that point was reached long ago in this case. Based upon the evidence in this case, the ALJ concludes that the Petitioner’s claim should not be granted.

III. Findings of Fact

  1. On__________, Claimant suffered a compensable injury to her back when she was cleaning trash from a drywall track.
  2. Claimant’s injury is covered by workers’ compensation insurance held by Continental Casualty Insurance Company.
  3. Dr. Wolski began treating Claimant for her compensable injury on December 3, 1998. Dr. Wolski diagnosed Claimant with low back pain and sciatica.
  4. During the course of Claimant’s treatment, Dr. Wolski prescribed, among other medications, Hydro/APAP, SOMA, Promethazine, Lortab, Diazepam, PropoxyN/APAP, Prevacid, Neurontin, Parafen Forte, and Chilorzoxazone from November 18, 2000, through May 25, 2001.
  5. The total amount of reimbursement sought for the medications in Finding of Fact No. 4 is $787.53.
  6. Prior to her injury, Claimant had a medical history of lower back pain extending down her left leg, and left foot pain.
  7. Claimant is addicted to pain relievers.
  8. Dr. Wolski’s letter of medical necessity merely recites the medications that were prescribed by him for Claimant and the purpose of the medications, but does not relate the medications to the Claimant’s condition, including expected outcomes and the duration of treatment.
  9. Dr. Wolski did not prepare a long-term treatment plan for Claimant.
  10. Dr. Wolski’s treatment notes do not evaluate Claimant’s medical condition in light of her previous medical history of lower back pain.
  11. Dr. Wolski’s treatment notes do not discuss Claimant’s addiction to pain relievers and concerns of previous medical personnel that Claimant has a drug problem. His treatment notes do not discuss the management of Claimant’s pain with narcotics in light of her drug addiction and drug-seeking tendencies, nor does it contain any periodic assessments of whether the medications Claimant is taking may actually contribute to her drug addiction.
  12. Dr. Wolski’s treatment notes do not evaluate the reasons for Claimant’s failure to make progress, outline a long-term treatment plan, or contain objective evaluation or measurements of Claimant’s pain reports or manifestations.
  13. Dr. Wolski’s treatment notes do not discuss the continuing need for the medications, given the lack of improvement reported by Claimant.
  14. Dr. Wolski’s treatment notes do not demonstrate that Claimant’s treatment was evaluated for effectiveness and modified as necessary in light of Claimant’s lack of improvement.
  15. Carrier denied reimbursement for the prescriptions on the basis that they were not medically necessary to treat Claimant’s compensable injury.
  16. On July 29, 2002, the Texas Worker’s Compensation Commission’s Medical Review Division (MRD) denied reimbursement to the Petitioner for the medications.
  17. On August 2, 2002, Petitioner requested a hearing on the MRD decision.
  18. On September 16, 2002, the Commission issued a notice of hearing that included the date, time, and location of the hearing, the applicable statutes under which the hearing would be conducted, and a statement of matters asserted.
  19. The hearing was convened by Administrative Law Judge Suzanne Marshall on February 4, 2003, and the record closed that day.

IV. Conclusions of Law

  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. Cures or relieves the effects naturally resulting from the compensable injury;
  7. Promotes recovery; or
  8. Enhances the ability of the employee to return to or retain employment
  9. Petitioner failed to prove by a preponderance of the evidence that the drugs Hydro/APAP, SOMA, Promethazine, Lortab, Diazepam, PropoxyN/APAP, Prevacid, Neurontin, Parafen Forte, and Chilorzoxazone were medically necessary and reasonably required to relieve the effects of or promote recovery from a compensable injury suffered by Claimant, within the meaning of Tex. Labor Code Ann. §§ 408.021 and 401.011(19).
  10. Petitioner is not entitled to reimbursement for the prescriptions.


IT IS ORDERED THAT Continental Casualty Company is not required to reimburse Hassle Free Pharmacy Service for the prescriptions of Hydro/APAP, SOMA, Promethazine, Lortab, Diazepam, Propoxy N/APAP, Prevacid, Neurontin, Parafen Forte, and Chilorzoxazone dispensed on Claimant’s behalf on February 26, 2001, through May 15, 2001.

Signed this 3rd day of April, 2003.

Administrative Law Judge

  1. Petitioner argues that a good faith standard should be applied in these cases, i.e., if the pharmacy acts in good faith in filling the prescription, it should be reimbursed. The ALJ does not agree. Medical necessity for the prescriptions is a prerequisite to reimbursement under the current worker's compensation system. The ALJ recognizes that these types of cases are especially difficult. The pharmacy is cast in the unenviable position of persuading the carrier (or other reviewer such as the MRD or an ALJ) that the doctor’s treatment and documentation sufficiently established medical necessity when the pharmacy was never a party to the treatment and had no access to the documentation or information in the Claimant’s medical files at the time the prescription was filled. There is an inherent risk for the pharmacy in workers’ compensation cases that a prescription, filled pursuant to a valid prescription by a licensed medical professional, may not be reimbursed.
  2. During the MRD review, Petitioner sought reimbursement for medications prescribed from November 18, 2000, through May 25, 2001. The MRD decision noted that the November 18, 2000, date of service request was submitted untimely. The MRD found that medical necessity was not established for the remaining requested medications. The ALJ dismissed the claims related to medications prescribed for anxiety and depression, since the carrier has challenged the extent of injury related to these issues. Petitioner limited its claims in this hearing to medications prescribed from February 26, 2001, through May 16, 2001. See Petitioner’s written closing argument, pp. 1-2. The ALJ notes that the medications at issue here constitute only a small portion of the medications that were prescribed by Dr. Wolski (and other doctors) to Claimant during the course of her treatment.
  3. These excerpts are also contained within Respondent’s Exhibit 1. For ease of reference, the ALJ will refer to the Respondent’s exhibits.
  4. This information is relevant to the testimony of Dr. Samuel Bierner, the Carrier’s witness.
  5. In a letter of medical necessity dated November 12, 2001, Dr. Wolski states that none of the providers at his clinic prescribed Chilorzoxazomp [sic]. Res. Ex. 1, p. 502.
  6. Lortab: Res. Ex. 1, pp. 71, 73, 87, 88, 89, 92, 100, 114, 121, 122, 123, 137, 159, 167, 171, 178, 180, 181, 185, 189, 190, 210, 212, 270, 271, 276, 291, 292, 299, 309, 312. SOMA: Res. Ex. 1, pp. 26, 58, 68, 89, 92, 93, 100, 116, 122, 123, 125, 216, 231, 245, 256, 267, 271, 273, 283, 285, 287. Parafon Forte (Chilorzoxazone): Res. Ex. 1, pp. 153, 157, 160, 162, 171, 178, 179, 180, 181, 185, 196, 197, 210, 211, 233.
  7. Res. Ex. 1, pp. 100-101, 171-172, 102, 103, 114, 119-121, 123, 135-137, 138, 210.
  8. Res. Ex. 1, pp. 329, 333, 340, 354, 375, 378, 383, 388, 393, 424, 428.
  9. Since the ALJ finds that there was no medical necessity for any of the prescriptions, it is not necessary to identify those prescriptions about which Dr. Wolski expressed doubt he prescribed.
  10. Claimant filed a request to change treating doctors with the Commission in July of 2001. Res. Ex. 1, p. 461. She began treatment with Dr. Mantsch at that time.
  11. It does not appear from the medial records that Claimant ever returned to work.
  12. Dr. Cruz is a board certified neurologist who performed a neuroelectrodiagnostic examination of Claimant on March 13, 1999, at the request of Dr. Wolski.
  13. MSIR is not a medication that is being challenged in this case.
  14. A lumbar myelogram on April 9, 1999, was normal. Res. Ex. 1, pp. 128-129. On November 11, 1999, a discogram of Claimant was normal and an independent medical evaluation (IME) on December 22, 1999, showed no real abnormality. Res. Ex. 1, pp. 192, 202. Another MRI of Claimant showed disc desiccation, mild to lower disk. Res. Ex. 1, p. 293. A lumbar myleogram on September 26, 2000, was negative and the CT scan showed mild, degenerative disease. Res. Ex. 1, pp. 295-296.
  15. Dr. Carol Williams noted in a peer review analysis of October 15, 1999, that Claimant may have had underlying lumbar disc disease which was aggravated, but not necessarily cause, by her work injury. She also noted that a discogram/CT would provide a definite answer to whether surgery would be necessary. Resp. Ex. 1, pp. 183-184. The discogram did not show a need for surgery. Res. Ex. 1, pp. 192-194.
  16. Dr. Ralph Renshaw performed an independent medical review of Claimant on December 22, 1999, and concluded that she had reached maximum medical improvement with an impairment rating of 6%. Resp. Ex. 1, pp. 202-208.

    On April 20, 2000, she was evaluated by Dr. Gregg Diamond who concluded that she had reached maximum medical improvement with a 5% overall impairment rating. Resp. Ex. 1, pp. 236-240.

  17. Dr. Leong’s thorough review of the medical records and her conclusion, supported by the medical records, are very persuasive.
End of Document