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At a Glance:
Title:
453-03-1023-m5
Date:
June 20, 2003
Status:
Retrospective Medical Necessity

453-03-1023-m5

June 20, 2003

DECISION AND ORDER

Hassle Free Pharmacy Services (Petitioner)[1] appealed the decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) upholding United States Fire Insurance Company’s (Carrier) denial of reimbursement for medications prescribed by Charles Marable, M.D., and provided to ____ (Claimant) on August 28, 2001, and September 26, 2001. Carrier denied reimbursement on the basis that the medicines were medically unnecessary. The Administrative Law Judge (Judge) finds that Petitioner is entitled to reimbursement of $1,033.37, plus interest, for the prescribed medications.

I. Jurisdiction, Notice, and Procedural History

There are no contested issues of jurisdiction, notice, or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing on this matter convened February 18, 2003, in Austin, Texas, with Judge Carol Wood presiding. Petitioner was represented by Peter Rogers, attorney. Carrier was represented by its attorney, Steven Tipton. The Commission did not participate in the hearing. The record was left open until March 3, 2003, for the filing of closing arguments. On April 15, 2003, the Judge reopened the record to permit the parties to submit the document identified as Exhibit 5, which was a letter from Von L. Evans, Jr., M.D. Inadvertently, a letter from Mark H. Bussell, M.D., was admitted as both Exhibit 5 and Exhibit 6. On April 16, 2003, the parties submitted the correct document, which was admitted as Exhibit 5A, and the record was closed that day.

II. Discussion

At issue is the reimbursement for certain medications provided Claimant and prescribed by Claimant’s treating physician, Dr. Marable. Specifically, Claimant was provided SOMA (a muscle relaxant), Ultram (a non-narcotic analgesic), Protonix (an acid inhibitor), and Doxepin (an anti-depressant also used for chronic pain suppression).

Evidence

Background

On________, Claimant was driving a dump truck when she was broadsided by a car. Fearing the fuel tank might explode, she jumped out of the truck and landed “spread eagle” on the pavement, injuring her chin, neck, and lower back. Claimant was originally treated by Dr. Tamara Hamby, who took X-rays of Claimant’s neck, which were normal.[2] Claimant has since been evaluated by several other doctors.

The following is a brief summary of the progression of medical opinions regarding Claimant’s condition and recommended treatment:

November 4, 1991:R. G. Ranelle, D.O., began treating Claimant on September 20, 1991, and found that "most of her problem was musculoskeletal and she had no significant surgical disease; i.e., disc pathology or anything that would be considered surgical." Dr. Ranelle referred Claimant to physical therapy, but she only went once. After reevaluating her on October 22, 1991, Dr. Ranelle opined that "her biggest problem is not her neck, or her back, but her psychological difficulty with dealing with her aches and pains that prevents her from getting better." Dr. Ranelle refused Claimant’s request for pain medication because she was not going to physical therapy and was not demonstrating an interest in getting better.[3] Claimant sought another doctor.

February 20, 1992:Marvin Overton III, M.D., a neurosurgeon, evaluated Claimant and reported that Claimant was "so miserable and so upset and nervous that it is impossible to get a really good reliable exam. While this whole thing may be functional I would doubt very much that it is a malingering situation and there very well may be a large disc at the bottom of things."[4] Dr. Overton recommended that Claimant undergo an MRI of her lower back.

February 26, 1992:Dr. Overton documented that Claimant had a central lumbosacral disc and recommended a simple disc excision.[5]

January 27, 1993:Dr. Von L. Evans noted that the MRI taken at Dr. Overton’s request showed "disc desiccation with a mild bulge at L5, S1."[6] After performing a physical examination of Claimant, Dr. Evans recommended more aggressive surgical staging studies, that is, a myelogram and nerve conduction EMG, to look for a herniated disc on that side. Dr. Evans found that Claimant had reached maximum medical improvement but not maximum surgical improvement.[7]

June 7, 1993: Dr. Mark H. Bussell evaluated Claimant’s condition to determine her impairment rating. He interviewed Claimant, conducted a physical examination, and reviewed Claimant’s medical records before determining that she had an eleven percent whole body impairment. Dr. Bussell found that Claimant had a L5-S1 disk herniation and cervical fibrositis and recommended that Claimant undergo aggressive physical therapy coupled with nonsteroidal anti-inflammatory medication and muscle relaxants. He also recommended another MRI and an EMG and nerve conduction velocity study to determine whether there was chronic radiculopathy present.[8]May 10, 1994: After Dr. Marable, a neurologist, recommended spinal surgery,[9] Gary Hutchison, M.D., examined Claimant to render a second opinion for Carrier regarding an L5-S1 laser discectomy. Dr. Hutchison opined that the MRI scan showed some disc desiccation with a "questionable small paracentral herniation to the right of midline."[10] After reviewing the lumbar myelogram and post myelographic CT and MRI, Dr. Hutchison opined that "no form of operative treatment will be beneficial to this patient. She has so much functional involvement that in the view of such minor abnormal diagnostic studies, this woman is not going to do well at all. Her reactions are totally out of proportion to the pathology demonstrated. . . ."[11]

1994: (Exact MRD ordered Claimant to attend a required medical examination at the date unknown) direction of Jerry Marlin, M.D., a neurosurgeon, to resolve the disputed issue of spinal surgery.[12]

August 25, 1994:Dr. Marlin examined Claimant and agreed that surgical intervention was not appropriate. According to Dr. Marlin, the "[p]ost-myelogram CT scan shows maybe a diffuse disc bulge at L5- S1, but there is no impact on the thecal sac and the S1 roots are not compromised or distorted by the disc bulging.”[13]

On September 2, 1994, MRD denied Claimant’s request for reimbursement for spinal surgery, and on June 13, 1996, a Commission hearing officer denied Claimant’s request for spinal surgery.[14]

Dr. Marable, who first saw Claimant on November 15, 1993, remains Claimant’s treating physician. He has mainly treated Claimant with medications to relieve her chronic pain. However, Dr. Marable continues to assert that Claimant needs to have back surgery.

Carrier’s Experts

Carrier called no one to testify at the hearing, However, Carrier introduced several doctors’ reports evaluating the appropriateness of the medications Dr. Marable used to treat Claimant. The following is a brief summary of the doctors’ findings:

January 27, 1997: James F. Hood, M.D., Medical Director of Forte, Inc., reviewed the medical appropriateness of the medications prescribed for Claimant, specifically, Ultram, Doxepin HCL, Zantac, and SOMA, among others. According to Dr. Hood, the Claimant suffers with "chronic pain syndrome with marked psychological overlay" and should not be give narcotics. Dr. Hood opined that SOMA, a muscle relaxant, is inappropriate for use beyond seven days because it metabolizes to a compound similar to Equanil/Meprobamate and, as such, is addictive. However, according to Dr. Hood, the use of Doxepin HCL (“an anti-inflammatory” [sic]), Zantac (a medication used to help with upper gastrointestinal problems associated with anti-inflammatory medications), and Ultram (a non-narcotic) are reasonable and necessary.[15]

July 7, 1997: C.S. Chenault, M.D., reviewed the material submitted to him by Forte, Inc., and determined that Claimant’s “overlying emotional makeup is predominate.”[16] Dr. Chenault opined that the use of SOMA is indicated for acute muscle spasms, but “there should be better ways to treat Claimant’s emotional problems.” According to Dr. Chenault, SOMA is generally indicated for acute ailments somewhere in the six weeks to three months range. Its “chronic use over long periods is undocumented as effective. Therefore, [SOMA] should have been used for no longer than three months after the injury unless unusual circumstances occur."[17]

November 3, 1999:Thomas S. Padgett, M.D., reviewed the documentation submitted to him by Forte, Inc., and found "there is no demonstration of any condition attributable to August 28, 1991, whose effect would support the above medication program. This would include Ultra [sic], Doxepin HCL, Ranitidine HCL, Soma (Carisoprodol), and Celebrex." Dr. Padgett noted that formal detoxification may be necessary because Claimant is a long-term user of all the above medications and others.[18]

September 11, 2001:Jerry R. Tindel, M.D., opined that Claimant’s injury should have healed in six months. According to Dr. Tindel, the only future treatment that Claimant should receive for her injury is a home exercise and stretching program. He asserted that Claimant’s injury was not severe enough to justify any of the treatments provided Claimant six months after her injury, maintaining that they (1) were not medically necessary and (2) did not meet the acceptable standard of care to treat the compensable injury.[19]

Petitioner’s Experts

In a letter dated May 11, 2000, Dr. Marable addressed the concerns raised about his treatment of Claimant’s condition.[20] Dr. Marable began treating Claimant in 1993 for lumbar radiculopathy emanating from the L5-S1 disc. According to Dr. Marable, he prescribed Ultram, a non-narcotic analgesic, for pain; Zantac for gastric irritation; and, at bedtime, Doxepin, an antidepressant that is also used for chronic pain suppression.[21] In a letter dated August 22, 2001, Dr. Marable again reiterated that Claimant suffered with "L5-S1 disc with lumbar radiculopathy," After conducting a physical examination of her, Dr. Marable found Claimant’s examination to be consistent with radiculopathy. He noted that Claimant complained of low back pain that radiated down both legs. In addition, Dr. Marable pointed out that Claimant experienced weakness and numbness in her left leg. Although Dr. Marable continued to recommend that Claimant be evaluated by a competent orthopedic back surgeon, he stated that his treatment of Claimant included SOMA, Doxepin at bedtime for chronic pain suppression, Protonic (instead of Zantac) for gastric irritation, and Ultram for pain.[22]

Petitioner called Michael Hoffman, M.D., a family practitioner, to testify. Dr. Hoffman testified that, after thirty-four years of practice, he was familiar with the drugs prescribed by Dr. Marable for Claimant. Although Dr. Hoffman had not examined the Claimant, he had reviewed Ex. P-1 (MRD’s certified record) the night before the hearing. Explaining that SOMA is a muscle relaxant; Protonix acts as an acid inhibitor; and Ultram is a non-steroid anti-inflammatory, Dr. Hoffman opined that these drugs were appropriate to treat Claimant’s condition. Explaining that each doctor has his own drug formulary and best idea of how to treat a patient, Dr. Hoffman testified it is difficult to do a peer review.

However, Dr. Hoffman found Dr. Marable’s medication treatment of Claimant’s chronic pain to be medically reasonable and necessary.[23]

Independent Medical Review

On July 18, 2000, Thomas E. Rapp, M.D., an orthopedic surgeon, conducted an Independent Medical Examination of Claimant after reviewing her medical records and taking her medical history. As a result of the physical examination, Dr. Rapp determined that Claimant “had exquisite tenderness in the lumbosacral area where she over reacted considerably to touch,”and “this was also true in the area of the sciatic notches bilaterally.” In his opinion, Claimant suffers with A[l]umbosacral strain with significant psychosomatic disorder secondary to chronic pain syndrome.”[24]

Dr. Rapp agreed with Dr. Hood’s January 27, 1997 report that pointed out Claimant had gone from doctor to doctor, receiving confusing and inconsistent information from those physicians. Dr. Rapp noted that, although one neurosurgeon told Claimant she had a herniated disc and needed "laser discectomy," another neurosurgeon, Dr. Richard Hubbard, who saw Claimant on May 22, 1996, determined the same tests were not abnormal enough to justify surgical intervention.[25]

Dr. Rapp found "gross psychological overlay of symptoms . . . Claimant has now focused on the chronic pain syndrome and in my office today has demonstrated multiple significant psychosomatic findings." Dr. Rapp wrote, "This lady has significant psychological disorders which need to be investigated and treated by a psychiatrist."[26] He recommended Claimant seek psychiatric counseling and that her medications be prescribed through the psychiatrist.[27]

B. ALJ’s Analysis

Petitioner has the burden of proof in this proceeding. 28 TEX. ADMIN. CODE (TAC) §§ 148.21(h) and (i); 1 TAC § 155.41. Pursuant to the Act, an employee who has sustained 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 compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE (Labor Code) § 408.021(a). Health care includes all reasonable and necessary medical services including a medical appliance or supply. Labor Code § 401.011(19)(A).

A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. Labor Code § 401.011(31). Section 408.028 of the Labor Code regarding pharmaceutical services provides that "a physician providing care to an employee . . . shall prescribe for the employee any necessary prescription drugs, and order over-the-counter alternatives to prescription medications as clinically appropriate and applicable . . . ."

The Carrier denied reimbursement for the medications prescribed by Dr. Marable and provided to Claimant, on the basis that the drugs were medically unnecessary ten years after Claimant’s compensable injury. The Carrier denied payment of the prescriptions using Code "V," explaining that payment was denied because the carrier deemed the treatment(s) and/or services to medically unreasonable and/or unnecessary based on a peer review judgment.[28]

Although Carrier’s experts Dr. Chenault and Dr. Padgett disagreed with Dr. Marable’s drug treatment for Claimant, Carrier continued to pay for those medications until 2001. Claimant clearly suffers with pain, whether physical or psychological or a combination of both. One option available to relieve Claimant’s condition is surgery, which was recommended and requested by Dr. Marable but denied by Carrier and upheld by MRD and the Commission. Although the physicians who have examined Claimant or have reviewed her medical records have differing opinions on what is to be done to relieve Claimant’s pain, it is clear that the medications relieve some of her pain and this pain, whether psychological or physical, stems from her compensable injury. Therefore, the Judge finds that the medications in issue were medically reasonable and necessary on August 28, 2001, and September 26, 2001, to treat Claimant’s compensable injury.

II. Findings of Fact

  1. On_________, Claimant suffered a back injury compensable under the Texas Workers’ Compensation Act and for which United States Fire Insurance Company (Carrier) was the responsible insurer.
  2. Claimant suffered injury to her lower back when the dump truck she was driving was broadsided by a car. Fearing the fuel tank might explode, Claimant jumped out of the truck and landed “spread eagle” on the pavement, injuring her chin, neck, and lower back.
  3. Claimant continues to experience pain in her lower back caused by the compensable injury.
  4. In August and September 2001, Claimant was under continuing medical treatment by Charles Marable, M.D., a neurologist, including the administration by him of medications to manage Claimant’s pain.
  5. The medications prescribed by Dr. Marable for Claimant included SOMA (a muscle relaxant), Protonix (an acid inhibitor), Doxepin (an anti-depressant also used to suppress chronic pain), and Ultram (a non-narcotic analgesic).
  6. The medication SOMA relieved the pain in Claimant’s lower back.
  7. The medication Ultram relieved Claimant’s lower back pain resulting from her injury.
  8. The medication Protonix relieved Claimant of the side effects of the medically necessary medication Ultram.
  9. The medication Doxepin suppressed Claimant’s chronic pain.
  10. The charges for the medications were submitted to Carrier and totaled $1,033.37.
  11. Carrier denied reimbursement for the medications on the basis they were not medically necessary to treat Claimant’s compensable injury.
  12. On July 29, 2002, the Texas Workers’ Compensation Commission’s Medical Review Division denied reimbursement to Petitioner for the medications.
  13. On August 8, 2002, Petitioner timely requested a hearing on the MRD decision.
  14. On November 13, 2002, the Commission issued 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 sections of the statutes and rules involved; and a short, plain statement of the matters asserted.

III. Conclusions of Law

  1. The Texas Workers’ Compensation Commission has jurisdiction related to this matter pursuant to Labor Code § 413.031.
  2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to Labor Code §413.031 and TEX. GOV’T CODE (Gov’t Code) ch. 2003.
  3. Petitioner timely requested a hearing, as specified in 28 TAC § 148.3.
  4. Proper and timely notice of the hearing was provided in accordance with Gov’t Code §§ 2001.051 and 2001.052.
  5. Petitioner has the burden of proof in this proceeding pursuant to 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41.
  6. Based on the findings, Petitioner proved by a preponderance of the evidence that the prescriptions written by Dr. Marable, Claimant’s treating physician, and filled on August 28, 2001, and September 26, 2001, were medically reasonable and necessary to relieve the effects of the compensable injury suffered by Claimant, within the meaning of Labor Code §§ 408.021 and 401.011(19).

ORDER

THEREFORE, IT IS ORDERED that Hassle Free Pharmacy’s request for reimbursement of $1,033.37, plus interest, from United States Fire Insurance Company is granted and United States Fire Insurance Company is ORDERED to reimburse Hassle Free Pharmacy Service this amount for the prescriptions of SOMA, Protonix, Doxepin, and Ultram provided to Claimant on August 28, 2001, and September 26, 2001.

Issued June 20, 2003.

CAROL WOOD
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Petitioner was not the dispensing pharmacy, but rather is a company contracted to handle workers’ compensation claims for providers.
  2. Ex. P-3 at 1.
  3. Ex. P-2.
  4. Ex. P-3 at 4.
  5. Ex. P-4.
  6. Ex. 5A at 1.
  7. Ex. 5A at 2 and 3.
  8. Ex. P-6.
  9. Ex. P-9 at 1.
  10. Ex. P-7 at 1.
  11. Ex. P-7 at 2.
  12. Ex. P-9 at 1.
  13. Ex. P-8 at 3.
  14. Ex. P-10 at 3.
  15. Ex. P-1 at 23-25.
  16. Dr. Chenault’s complete misconception and description of how Claimant was injured perhaps distorted his opinion of Claimant’s condition and Dr. Marable’s treatment. Dr. Chenault stated that Claimant “was driving a rather large truck which struck a car and would therefore have resulted in a relatively minor injury. I have no doubt that it is consistent that she had a sprain, but for her to persist in having chronic symptoms over six years as the result of that type of injury is fairly unlikely.” Ex. P-1 at 43.
  17. Ex. P-1 at 43.
  18. Ex. P-1 at 39-41.
  19. Ex.P-1 at 35.
  20. Dr. Marable is Board certified in neurology.
  21. Ex. P-1 at 26.
  22. Ex. P-1 at 27.
  23. Dr. Hoffman explained that, since the time these drugs were prescribed by Dr. Marable, other drugs have been developed that might now be more appropriate.
  24. Ex. P-1 at 37.
  25. Ex. 1 at 36.
  26. Ex. P-1 at 37.
  27. Ex. P-1 at 38.
  28. Ex. P-1 at 11 and 21.
End of Document
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