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At a Glance:
Title:
453-03-0379-m5
Date:
January 29, 2003
Status:
Retrospective Medical Necessity

453-03-0379-m5

January 29, 2003

DECISION AND ORDER

The issue in this case is whether the Petitioner Hassle Free Pharmacy (Provider) should be reimbursed for Neurontin, Hydrocodone, Sonata, Nortriptylin, Relafen, and Naproxen (medications) prescribed for and provided to the workers’ compensation claimant between January 22, 2001, and September 5, 2001. The Administrative Law Judge (ALJ) concludes that Provider did not meet its burden of proving the medications were medically necessary for the treatment of the claimant’s injury. Therefore, reimbursement is denied.

I. Jurisdiction, Notice, and Procedural History

The Texas Workers’ Compensation Commission (the Commission) has jurisdiction over this matter pursuant to §413.031 of the Texas Workers’ Compensation 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 findings and decision on August 7, 2002. Provider filed a timely request for hearing. Proper and timely notice of the hearing was issued October 8, 2002. The hearing was convened on December 2, 2002, and after briefs, the record was closed December 16, 2002. Peter N. Rogers appeared for Provider, and David L. Swanson appeared for Continental Casualty Company (Carrier).

II. LEGAL Standards

The applicable legal standards are found in Tex. Lab. CodeAnn. §§408.021 and 401.011. Section 408.021 states:

(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:

  1. cures or relieves the effects naturally resulting from the compensable injury;
  2. promotes recovery; or
  3. enhances the ability of the employee to return to or retain employment.

Section 401.011(19) defines “health care” as including “all reasonable and necessary medical . . . services.”

Claimant suffered a compensable injury to her back when she slipped and fell while working as a waitress at ______ As the injury was to her back, the Spine Treatment Guidelines(STG) apply. The STG ground rules found at 28 Tex. Admin. Code (TAC) § 134.1001 set forth the requirements necessary for work related injury treatments to be considered medically necessary.[1]

Provider has the burden of proof in this matter. 28 TexAdmin. Code §148.21(h).

III. DISCUSSION

The MRD denied reimbursement on the bases that the documentation was insufficient to show the treatments complied with two STG requirements.[2]

Medical Necessity

In support of its claim that the treatment was medically necessary, Provider submitted a letter dated November 26, 2002, written by Daniel Shalev, M.D., the doctor who prescribed the medications. In the letter, Dr. Shalev states:

The following is a response to your request for medical necessity letter for medications prescribed to [Claimant] in relation to her work injury on________. [Claimant ] has been suffering from neuropathic pain. As such, it is necessary to treat her with a combination of narcotic pain medications which in this case is the Methadone 10mg, tricyclic antidepressant which in this case is the Nortriptyline, and Anticonvulsant which in this case is the Neurontin. The combination of these medications is classically indicated for neuropathic pain. In addition she has had sleep disturbance and muscle spasms due to her being in pain, and for this reason, she is getting a prescription for Zanaflex. She is also getting anti-inflammatory medications; however she is not getting simultaneously Vioxx, Relafen and Naprosyn, but only Relafen. Anti-inflammatory medications are also indicated for treatment of pain that is associated with inflammatory processes as is the case with [Claimant].

As you see, all of these medications are used to treat pain and associated symptoms that are related to the work injury that occurred on ________ and thus should be fully compensable.

Please to not hesitate to contact me if you have any questions.

Dr. Shalev’s letter is problematic not only because it is conclusory and nonspecific, but also because the records do not indicate that Dr. Shalev examined Claimant or reviewed reports of other doctors concerning her. Other than his name on the prescriptions, Dr. Shalev’s name was only mentioned once in a rather cryptic note that said “Several medications have been prescribed during this time as part of her conservative treatment.” What is more alarming is that Dr. Shalev is not aware of the drugs that he is prescribing Claimant. He mentioned that Claimant was treated with methadone when she was actually treated with hydrocodone, which he did not mention. Hydrocodone and methadone are not the same drug.[3] In addition Dr. Shalev’s letter does not describe the nature of Claimant’s injury; it does not describe her diagnosis; the nature of her diagnosis; and, it does not describe her treatment to date. Dr. Shalev’s letter is simply insufficient to prove that the medications prescribed for treatment were medical necessary.

In support of its claim that the treatment was medically necessary, Provider also submitted Kevin E. Cowan, Sr., M.D.’s, report dated June 7, 1999.[4] Dr. Cowan’s report indicated that Claimant would reach maximum medical improvement on September 7, 1999 with an impairment rating of 14%. The report indicated that Claimant’s MRI was negative in the lumbar area. Absent from Dr. Cowan’s report, is any suggestion that Claimant should be prescribed the medications, or that the prescriptions were medically necessary.

Provider also submitted Paul A. Vaughan’s, M.D., May 1, 2001, statement of medical necessity. In this form, Dr. Vaughan indicated that the medications hydrocodone, sonata, nortryptyline, and neurontin were medically necessary to treat Claimant’s injury. The form does not describe her diagnosis; the nature of her diagnosis; and, it does not describe her treatment to date.

Provider, citing 28 TAC §133.304 (g),[5] argued that David H. Trotter, M.D., an orthopedic surgeon, was not qualified to prepare a peer review to determine whether the drugs prescribed to Claimant were medically necessary. Provider explained that Dr. Shalev is certified in pain management and anesthesiology, and Dr. Trotter is not in the same or similar specialty. Provider’s interpretation of this rule is too narrow. First, the rule presupposes that the person prescribing is a treating physician. As noted above there is nothing in the record to indicate that Dr. Shalev has ever seen or treated Claimant. Under Provider’s argument, if an orthopedic surgeon is treating a person for a back injury and requests a podiatrist[6] to write the prescription, then only a podiatrist would be qualified to make a proper peer review of the person’s back.

It appears that Dr. Vaughan, an orthopedic surgeon, is Claimant’s treating doctor.[7] Dr. Trotter, who has the same specialty as Dr. Vaughan, performed a peer review dated March 7, 2001.[8] Dr. Trotter indicated that Claimant’s MRI showed possible transitional vertebra but was otherwise negative; that her discogram was unremarkable; and, that her EMG showed chronic radiculopathy. Dr. Trotter’s report indicated that Claimant appeared to have no further indication whatsoever for ongoing treatment related to the injury , and that there appeared to be no medical indication for any prescribed or non-prescribed medications causally related to the injury.

Jack Kern, M.D., an orthopedic surgeon, prepared a report on July 14, 2000, that indicated that Claimant had no nerve root irritation, and that there were signs of significant structural change to Claimant’s lumbar spine. His report further indicated that Claimant did not have neuropathic pain, and that further prescription medications were not medically necessary.

Samuel Bierner, M.D., a pain specialist, testified at the hearing. He explained that the records show that Claimant suffered a soft tissue injury that should have resolved itself within a few months. He indicated that the records did not show that Claimant was experiencing neuropathic pain because the records did not show that she suffered a nerve injury. Dr. Bierner indicated that Claimant was treated in a pain management program. He explained that use of narcotic pain medications is contraindicated for persons who have been through a chronic pain management program because one of the goals of such programs is to wean persons off such medications and after the program, the use of the medications interferes with the coping strategies taught in the program.

Presumption of Medical Necessity

In support of Provider’s claim of medical necessity, it cited a SOAH Decision and Order which held that a prescription issued by a treating physician establishes a presumption of medical necessity that may be relied on by a pharmacy. The decision also held that to rebut the presumption, the Carrier should show that the pharmacy did not act in good faith in accepting and filling the prescriptions.

The ALJ disagrees with this conclusion because it is the Carrier’s right to contest medical necessity, not to contest whether a pharmacy’s actions were in good faith, notwithstanding medical necessity. An employee is entitled to all health care “reasonably required by the nature of the injury.”[9] Nothing in the Act or Commission rule states that a health care Provider is entitled to payment for health care other than care to which an employee is entitled. Therefore, to prove entitlement to payment for medications dispensed to an employee, a pharmacy must show that the employee was entitled to the medications under the Act or rules. The pharmacy must show that medications were reasonably required by the nature of the injury. Nothing in the Act or Commission rules creates such a presumption, and nothing in the Act or rules provides or suggests that a health care provider’s entitlement to payment is based on the provider’s state of mind rather the necessity of the services provided. In the instant case, the presumption would effectively shift the burden of proof.

Conclusion

The ALJ concludes that Provider is not entitled to reimbursement because the medical records did not support that medication was evaluated for effectiveness and modified based on clinical changes, and was objectively measured and demonstrated functional gains. Therefore Provider has not met its burden of proving that the medications were medically necessary for the treatment of the Claimant’s compensable injury.

IV. FINDINGS of Fact

  1. Hassle Free Pharmacy (Provider) provided Neurontin, Hydrocodone, Sonata, Nortriptylin, Relafen, and Naproxen to the workers’ compensation claimant between January 22, 2001, and September 5, 2001.
  2. Daniel Shalev, M.D., prescribed the medications to the claimant.
  3. Paul A Vaughan, M.D., was Claimant’s treating physician.
  4. Provider requested reimbursement from Continental Casualty Company (Carrier), which Carrier denied.
  5. Provider filed a Request for Medical Dispute Resolution with the Texas Workers’ Compensation Commission (the Commission).
  6. The Commission’s Medical Review Division (MRD) issued its decision, denying Provider’s request, on August 7, 2002.
  7. Provider filed a timely request for a hearing before the State Office of Administrative Hearings (SOAH).
  8. Notice of the hearing was issued October 8, 2002.
  9. The hearing was convened December 2, 2002. Provider and Carrier appeared through their representatives. The staff of the Commission did not appear. After allowing the parties to brief the case, the ALJ closed the record on December 16, 2002.
  10. The mere prescribing of a substance by a medical doctor, without more, is insufficient evidence to require a finding that the substance is medically necessary.
  11. Provider failed to show the medically necessity of the medication because the documents failed to demonstrate that functional gains were achieved; failed to demonstrate that the medication was evaluated for effectiveness and modified based on clinical changes; and,

failed to demonstrate the medication was objectively measured.

  1. The evidence presented does not demonstrate the efficacy or the medical necessity of the medications prescribed.

V. Conclusions of Law

  1. The Commission has jurisdiction over this matter pursuant to §413.031 of the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. ch. 401 et seq.
  2. 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.
  3. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
  4. Provider has the burden of proof in this matter. 28 Tex. Admin. Code §148.21(h).
  5. Provider has not met its burden of proving the medications were medically necessary for the treatment of the claimant’s compensable injury within the meaning of Tex. Lab. Code Ann. §408.021.
  6. Provider’s request for reimbursement should be denied.

ORDER

IT IS, THEREFORE, ORDERED that Hassle Free Pharmacy’s request for reimbursement for medication provided to the workers’ compensation claimant from January 22, 2001, through September 5, 2001, is denied.

Signed this 29th day of January, 2003.

STEPHEN J. PACEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. (2) Ground Rules.
  2. (A) Notwithstanding any other provision of this section, treatment of a work related injury must be:

    (I) adequately documented;

    (ii) evaluated for effectiveness and modified based on clinical changes;

    (iii) provided in the most appropriate, least intensive setting;

    (iv) cost effective;

    (v) consistent with this guideline which may include providing a documented clinical rationale for deviation from this guideline;

    (vi) objectively measured and demonstrated functional gains; and

    (vii) consistent in demonstrating ongoing progress in the recovery process by appropriate re-evaluation of the treatment.

  3. The MRD concluded that the medical records did not demonstrate that the medication was evaluated for effectiveness and modified based on clinical changes, and was objectively measured and demonstrated functional gains. 28 TAC § 134.1001(e)(2)(A) (ii)and (vi).
  4. 56th Edition, Physicians’ Desk Reference, pages 1316 and 3056 (2002).
  5. Dr. Cowan’s was designated by the Commission to determine whether Claimant had reached maximal medical improvement, and if so, the percentage of impairment, if any. Citing Texas Worker’s Compensation Act (the Act), Tex. Lab. Code Ann. § 408.125, Provider argued that Dr. Cowan’s report must be given presumptive weight. Provider’s argument is incorrect because the section read in its entirety indicates that this rule applies to Commission impairment ratings. The section does not apply to de novo hearings at SOAH.
  6. 28 TAC §133.204(g) provides in pertinent part: If an insurance carrier denies or reduces payment for a medical bill based on a peer review, the health care provider who conducts the peer review shall:
  7. (1) be a licensed health care provider, as defined in§401.011 of the Texas Labor Code,

    of the same or similar specialty as the prescribing or performing health care provider;

    (2) be a licensed to prescribe or perform the category of treatment(s) and/or service(s) under review.

  8. A podiatrist is a doctor who specializes in feet. 28th Edition, Dorland’s Illustrated Medical Dictionary.
  9. Provider’s Exhibit 3, page 14.
  10. Carrier’s Exhibit 3, page 102.
  11. Tex. Lab. Code Ann. § 408.021
End of Document
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