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 Great Northern Insurance Co. (Carrier) for certain prescription medications provided to Claimant____. The prescriptions, Kadian, Ambien, Celexa, Arthrotec, Sonata, Serzone, Axid, and Buspar, were dispensed as part of Claimant’s treatment for chronic pain and depression related to her compensable injury. The only issue is whether the medications were medically necessary. As set out below, the Administrative Law Judge (ALJ) finds that the prescriptions were medically necessary and that reimbursement of $3,273.47, plus interest, is due to Petitioner.
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 September 10, 2002, adopting the decision of the Independent Review Organization (IRO) which found medical necessity for only two of the disputed medications, Ultram and Neurontin. Petitioner filed a timely request for hearing on September 18, 2002. Proper and timely notice of the hearing was issued November 1, 2002. The hearing was convened on April 16, 2003, with the undersigned ALJ presiding. The hearing concluded and the record closed on that date. Peter Rogers, attorney, represented Petitioner and appeared by telephone. William Weldon, attorney, represented Carrier.
II. Legal Standards
- (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:
- cures or relieves the effects naturally resulting from the
- promotes recovery; or
- enhances the ability of the employee to return to or retain
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 issue presented is whether the Carrier should reimburse Petitioner $3,273.47, plus interest, for the cost of filling several prescriptions for Kadian, Ambien, Celexa, Arthrotec, Sonata, Serzone, Axid, and Buspar from April 6 to December 21, 2001. Petitioner contends that Claimant’s treating physician prescribed the medications for conditions (depression and chronic pain) that resulted from her compensable injury of deQuervain’s tenosynovitis; thus, they were medically necessary. Carrier argued that Claimant’s medical condition does not require the continued use of these medications approximately six years after the injury. According to Carrier, the MRD decision should be upheld.
A. Petitioner’s Evidence
The following documents were admitted into evidence on behalf of Petitioner:
Exhibits 1-7Medical reports and answers to interrogatories;
Exhibit 8Deposition of Dr. Stanford Kiser, Jr.; and
Exhibit 9Documents submitted to the IRO.
Dr. Kiser has treated Claimant for chronic pain since December of 1995. In his deposition, he testified about the medications that were prescribed for the Claimant: Kadian, Ambien, Celexa, Arthrotec, Sonata, Serzone, Axid and Buspar. According to Dr. Kiser, Kadian is a narcotic that is a sustained-release form of morphine used to treat pain. It is long-lasting narcotic and has a lower risk of dependency than other narcotics. In response to questions about whether Claimant’s injury would cause the degree of pain she experiences, Dr. Kiser said that, in treating the pain, the correlation between the injury and degree of pain does not matter; what matters is the subjective degree of distress that the patient reports. Pet. Ex. 8, p. 8.
Dr. Kiser testified that Ambien is a sleep medication that is prescribed because pain can interfere with sleep. Id. at10. He said that there is no contraindication for its long-term use, nor is it considered to be habit-forming. Sonata is another sleep medication that lasts about four hours and is often used as a backup medication. Sonata is not habit-forming, nor is there a contraindication to continued use.
According to Dr. Kiser, Celexa is an anti-depressant that can also reduce pain symptoms of a chronic pain state. In a situation where chronic pain has produced secondary depression, Celexa can help both the pain and the depression. Celexa also has an anti-anxiety effect and is not habit-forming, nor contraindicated for long-term use. Serzone is an anti-depressant medication with similar benefits for pain, anxiety and depression as that of Celexa. The use of Celexa and Serzone can augment each other’s benefits. Id. at 15. Buspar is an anti-anxiety medication used to relieve the anxiety caused by pain. Buspar can be used when the anti-depressant is inadequate. It is not habit-forming.
Arthrotec is an anti-inflammatory pain medication. According to Dr. Kiser, chronic pain can cause muscle spasms and the muscle spasms can cause inflammation. Arthrotec relieves the effects of the inflammation; however, it can cause stomach or kidney irritation with long-term use. Because of the effects of Arthrotec, Dr. Kiser prescribed Axid, which reduces the acid output by the stomach. Dr. Kiser stated that the medications prescribed for Claimant were medically necessary to treat her anxiety, depression, insomnia, stomach irritation and chronic pain because they allow her to perform activities of daily living.
The medications, dates of service, and amounts of the prescriptions are as follows:
Kadian 4-6-01 $ 135.26
Ambien 5-8-01 $ 80.94
Celexa 5-8-01 $ 74.65
Arthrotec 5-8-01 $ 156.05
Sonata 5-8-01 $ 77.04
Serzone 5-8-01 $ 135.40
Axid 5-8-01 $ 148.19
Buspar 5-8-01 $ 298.84
Claimant testified at the hearing that she worked for __________ law firm in Dallas, Texas, as a ________ from 1988 through March of 1996. She performed key-boarding duties approximately 8 to 10 hours a day. According to Claimant, she “wore out” her hands and arms in the course of her demanding position. In__________, she complained to the firm’s human resource department that she was experiencing wrist pain, although the actual date of the compensable injury was_________. She had a tendon release surgery on her right thumb in November of 1995. She began seeing Dr. Kiser in December of 1995, after surgery on her thumb. She participated in physical therapy and then returned to work in a different position that required less keyboarding. She was unable to perform the job, however, and since February of 1996, she has not worked.
According to Claimant, there was a question regarding the extent of her compensable injury and in 1998, the Carrier agreed that chronic pain and her psychological problems, including depression, were part of her compensable injury. She has received a 14.5% permanent impairment rating.
Claimant testified that it took years of trying different medications and combinations of medications to find what worked for her. The current combination of medications allows her relief from the chronic pain that has worsened through the years. According to Claimant, it took several years to find the combination of anti-depressants and anti-anxiety medications that allow her to cope with depression and hyperactivity. With regard to the medications she is taking, Claimant testified that the Kadian gives her relief from chronic pain, while Ultram helps her to cope with sudden onsets of breakthrough pain. She takes the Ultram on an as-needed basis, perhaps 4-5 times a week. She said that Neurontin treats the nerve pain resulting from the injury. She testified that she takes Neurontin three times a day and it stops the pain, as well as helps her to cope with phantom pain signals. She stated that she takes Sonata if she wakes up in pain and can’t go back to sleep. If she is unable to sleep at all, she takes Ambien instead. The Arthrotec assists with inflammation and swelling of her joints. Because the other medications she takes causes stomach problems, the Axid assists with acid control.
Claimant said that surgery was recommended in 1998 but was disapproved by the Carrier. According to Claimant, the procedure would consist of three surgeries on each arm to release the pressure off the nerves that is causing such pain. Claimant stated that she needed either the surgeries or the medications in order to cope with the severe and persistent pain. Because the Carrier did not authorize the surgery, Claimant believes that it must provide the medications that give her relief from her symptoms.
Carrier’s exhibits Nos. 1 and 2 were admitted into evidence, consisting of the documents that were sent to the IRO and additional documents related to the claim. Carrier did not call any witnesses to testify.
Carrier relies upon the medical review of Dr. Charles R. Crane to support its decision that the prescriptions were not medically necessary. Carrier Ex. 1, pp. 32-33. Dr. Crane is board certified in physical medicine and rehabilitation, and electro diagnostic medicine. Dr. Crane agreed that the medications at issue appear to be medically necessity for Claimant’s condition if depression had been accepted as part of the compensable injury. However, according to Dr. Crane, the issue was whether the medications were providing any positive improvement in the Claimant. Dr. Crane’s review indicates that he did not see any documentation of improvement in the Claimant’s condition as a result of the medications and would recommend that alternative treatment, such as placement in a detoxification inpatient program and reduction of the current medications to the lowest possible dosage be tried. Id. at 33.
This is a difficult case. A relatively minor case of deQuervain’s tenosynovitis in 1993 has developed into a downward-spiraling deterioration of Claimant’s ability to function due to chronic pain and depression. The evidence does not explain why or how this happened, nor does it contain the medical records that might explain it. Perhaps the reasons will remain unknown, due to the mysteries of chronic pain. What does seem clear is that Claimant’s condition throughout the years has worsened. What is also clear is that the chronic pain and depression Claimant experience has been determined to be part of her compensable injury. It is undisputed that the medications in issue relieve the effects of Claimant’s chronic pain and depression; consequently, medically necessity has been established.
The Carrier’s expert witness, Dr. Crane did not dispute that the medications were medically necessary. He suggested that an alternative treatment be considered, i.e., discontinuing and/or weaning her from her medications. The ALJ finds that this suggestion is not supported by any evidence in the record, nor is it based upon Dr. Crane’s physical examination of patient. Rather, Dr. Crane’s opinion was premised on the idea that the record did not reflect that Claimant’s condition had improved as a result of the medication treatment. The ALJ was not provided with any authority that Claimant, a chronic pain sufferer, must demonstrate that her condition continues to improve with the medications. Rather, there is evidence that without the medications, Claimant cannot perform the activities of daily living. In this hearing, Claimant testified that the combination of medications allows her relief from her symptoms, thereby making her condition better with the medications than without them. Dr. Kiser, her treating physician, said that these medications have improved Claimant’s condition and that without them, she would not be able to function at the level at which she currently functions.
The ALJ finds that Petitioner has established, through the testimony of Claimant and Dr. Kiser, that the prescriptions for Kadian, Ambien, Celexa, Arthrotec, Sonata, Serzone, Axid, and Buspar are medically necessary to relieve the effects naturally resulting from her compensable injury. Based upon the evidence in this case, the ALJ concludes that the Petitioner’s claim should be granted.
V. Findings of Fact
- Claimant worked for _____________law firm in Dallas, Texas, as a _____ from 1988 through March of 1996.
- Her job duties required her to perform extensive key-boarding work on the computer.
- On_________, Claimant suffered a compensable injury to her hands and arms when she developed deQuervain’s tenosynovitis.
- Claimant’s injury is covered by worker’s compensation insurance provided by her employer, and carried through Great Northern Insurance Company.
- Claimant had a tendon release operation on her right wrist to treat her compensable injury in November of 1995.
- Claimant continues to suffer from persistent and chronic pain in both her left and right hands, wrists, and arms.
- Claimant suffers from depression.
- The conditions of chronic pain and depression referenced in Findings of Fact Nos. 6 and 7 are related to Claimant’s compensable injury.
- Claimant has been treated by Dr. Roy Sanford Kiser of the Texas Pain Management Clinic since December 21, 1995.
- Dr. Kiser prescribed the medications Kadian, Ambien, Celexa, Arthrotec, Sonata, Serzone, Axid, and Buspar to relieve the effects of chronic pain and depression resulting from the compensable injury from April to December 2001.
- Claimant’s medical condition resulting from the compensable injury warranted the use of narcotic pain medications (Kadian), anti-depressants (Celexa and Serzone), anti-anxiety medications (Buspar), anti-inflammatories (Arthrotec), antacids (Axid), and sleep medications (Sonata and Ambien).
- The medications Kadian, Ambien, Celexa, Arthrotec, Sonata, Serzone, Axid, and Buspar relieve the effects of Claimant’s depression and chronic pain resulting from her injury.
- Hassle Free Pharmacy Services (Petitioner) filled two prescriptions for Kadian, prescribed by Dr. Kiser, on April 6 and December 21, 2001, at a cost of $ 311.74.
- Petitioner filled four prescriptions for Ambien, prescribed by Dr. Kiser, on May 8, June 14, October 25, and December 5, 2001, at a cost of $ 323.76.
- Petitioner filled two prescriptions for Celexa, prescribed by Dr. Kiser, on May 8 and June 10, 2001, at a cost of $ 219.95.
- Petitioner filled four prescriptions for Arthrotec, prescribed by Dr. Kiser, on May 8, June 14, October 18, and December 6, 2001 at a cost of $ 640.92.
- Petitioner filled four prescriptions for Sonata, prescribed by Dr. Kiser, on May 8, June 14, October 25, and December 5, 2001, at a cost of $ 312.11.
- Petitioner filled four prescriptions of Serzone, prescribed by Dr. Kiser, on May 8, June 14, October 25, and December 6, 2001 at a cost of $ 555.42.
- Petitioner filled two prescriptions of Axid, prescribed by Dr. Kiser, on May 8 and October 25, 2001, at a cost of $ 296.38.
- Petitioner filled two prescriptions of Buspar, prescribed by Dr. Kiser, on May 8 and October 25, 2001, at a cost of $ 613.19.
- Petitioner submitted its charges for the medications in Findings of Fact Nos. 13-20 to Carrier for payment.
- Carrier denied payment of the charges on the grounds that the medications were not medically necessary.
- Petitioner requested reconsideration of Carrier’s decision; Carrier again denied the request to reimburse the prescriptions.
- Petitioner requested dispute resolution by the Texas Worker’s Compensation Commission Medical Review Division (MRD) on seeking reimbursement for the medication. The matter was referred to an IRO for review.
- On September 10, 2002, the MRD issued a decision denying reimbursement for the Kadian, Ambien, Celexa, Arthrotec, Sonata, Serzone, Axid, and Buspar medications, agreeing with the IRO determination that medical necessity had not been established for these medications.
- On September 18, 2002, Petitioner appealed the MRD’s decision.
- On November 1, 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
- 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
- The Texas Worker’s Compensation Commission has jurisdiction to decide the issues presented pursuant the Texas Worker’s Compensation Act (Act), Tex. Labor Code Ann. § 413.031.
- 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.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. § 2001.052.
- 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).
- Based on the above Findings of Fact and Conclusions of Law, the prescriptions of Kadian, Ambien, Celexa, Arthrotec, Sonata, Serzone, Axid, and Buspar by Claimant’s treating physician were medically reasonable and necessary to relieve the effects naturally resulting from the compensable injury.
- Petitioner is entitled to reimbursement for the prescriptions under Tex. Labor Code §§ 413.015 and 408.021(a).
- The Carrier should reimburse the Petitioner for the prescriptions filled for Claimant from April 6 through December 2001, in the amount of $ 3,273.47, plus interest.
IT IS ORDERED THAT the Hassle Free Pharmacy Services’ request for reimbursement of $3,273.47, plus interest, from Great Northern Insurance Company is granted and Great Northern Insurance Co., is ORDERED to reimburse Hassle Free Pharmacy Services this amount.
Signed this 6th day of June, 2003.
SUZANNE FORMBY MARSHALL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- Ultram and Neurontin were also disputed by the Carrier as being medically necessary. The IRO decision on August 21, 2002, found that these medications were medically necessary. This finding was adopted in the MRD order, but the Carrier did not appeal that decision.↑
- Dr. Kiser received his M.D. degree from the University of Texas Southwestern Medical School in 1970. He is board certified in psychiatry by the American Board of Psychiatry and Neurology and has a sub certification by that Board in pain medicine. He is also board certified in pain medicine by the American Board of Pain Medicine.↑
- Claimant testified that the Carrier is currently not approving reimbursement for any medications except Kadian. However, since the Carrier did not appeal the MRD decision’s finding that Ultram and Neurontin are medically necessary, the ALJ notes that reimbursement for these medications have been ordered in the MRD decision.↑
- The evidence in this case contains little information about a recommended surgery. The only mention of surgery occurs in Pet. Ex. 6, a letter from Dr. Kiser dated 2-6-97 wherein he states that “Dr. Carter has advised that surgery is not an option to improve problems of pain and dysfunction in her hands.” The ALJ does not know whether surgery is a viable option for Claimant. Since this was not an issue in this case, it will not be addressed here.↑
- Counsel for the parties agreed that depression and chronic pain had been agreed to be part of Claimant's compensable injury.↑
- There is no evidence in the record that Claimant is abusing or mis-using the medications nor is there any evidence that the dosage level of the medications is inappropriate. Dr. Crane’s letter did not provide any details supporting his suggested alternative treatment or indicating that it would result in an improvement in Claimant’s condition. The evidence indicates, to the contrary, that discontinuing Claimant’s medications may have an adverse effect on her condition.