DECISION AND ORDER
American Home Assurance Company (Carrier) requested a hearing before the State Office of Administrative Hearings (SOAH) to contest a Texas Workers’ Compensation Commission (Commission) Medical Review Division (MRD) decision (the appeal) regarding certain medications provided to an injured worker (Claimant) by EZ Rx Pharmacy (Provider). The MRD determined that the Carrier should pay for the medications.
The Carrier has the burden of proof. The Administrative Law Judge (ALJ) concludes it proved that two of the medications were not medically necessary and payment should be denied. Because the Carrier did not show a third medication was medically unnecessary, it should be paid.
II. PROCEDURAL HISTORY
The hearing was held on December 16, 2002, before the undersigned ALJ at the State Office of Administrative Hearings (SOAH) hearing facility, Fourth Floor, William P. Clements Building, 300 West Fifteenth Street, Austin, Texas. The Carrier appeared through its attorney Steven M. Tipton. The Provider appeared through its representative Nicky Otts. Because there were no contested issues of notice, jurisdiction, or venue, those matters are addressed in the fact findings and legal conclusions without further discussion here.
A. Legal Standards
Section 408.021(a)(1-3) of the Texas Labor Code (Act) provides:
(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:
- 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.
Under § 401.011(19) of the Act, “health care” includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.
The Carrier has the burden of proof because it appealed the MRD decision.
The Claimant was injured on _____, when he fell from scaffolding at his job and lost consciousness. His employer carried workers’ compensation coverage through the Carrier. The Claimant presented to Salvador P. Baylan, M.D., for treatment. Dr. Bayan prescribed the medications at issue on November 20, 2000. The disputed medications are: Oxycontin CR, billed at $540.75; Oxyir, billed at $45.04; and Sonata, billed at $39.65. The billed amounts were the same as the maximum allowable reimbursements for the drugs.
The parties agreed that the sole issue to be determined is whether the medications were medically necessary.
A. Evidence and Argument
The Provider presented evidence through Dr. Bayan that:
- the Claimant suffered from cerebral concussion without a brain injury; acute lumbosacral strain and right lateral rib contusion, but without fractured ribs.
- the Claimant’s ____injury caused pain in his neck, back, upper extremities, and chest area;
- the pain is exasperated with increased activities in those areas;
- the pain is aggravated by prolonged sitting, standing, walking, bending, and breathing;
- physical examination of the lumbar spine shows tenderness of the middle and lower lumbar paraspinous with associated muscle spasms and tightness and decrease in the Claimant’s normal range of motion because of decreased pain;
- the pain continues without evidence of subsiding;
- the Carrier has evidence of vestibular problems;
- the Claimant’s condition prevents him from performing many of the activities he was once able to perform; and
- Oxycontin and Oxyir were prescribed for pain; Oxyir gives immediate relief; Sonata is for insomnia which is usually brought on by pain.
The Carrier relied on evidence from James Hood, M.D., who wrote an opinion on April 30, 2000, describing Oxycontin as an “inordinately strong” “sustained release morphine.” He said a magnetic resonance imaging (MRI) of the Claimant’s spine was essentially normal for a man of the Claimant’s age and an MRI of the Claimant’s brain showed pre-existing and ongoing problems of ischemia. He believed the ischemia problems, in reasonable medical probability, are secondary to the Claimant’s ongoing cardiovascular disease rather than his compensable injury, which Dr. Hood described as a “contusion of the scalp and . . . possible concussion.”
According to Dr. Hood: the Claimant had “no acute discal pathology as a result of the fall”; the compensable injury was a lumbar sprain/strain; and the Claimant was receiving the medications for a “multitude of other problems” that were not the result of the injury.
Dr. Hood said there is no documentation to substantiate the appropriateness of Oxycontin for the compensable injury. In his discussion, he did not specifically address the other drugs at issue by name.
In an opinion written on October 14, 2001, Aaron L. Combs, M.D., discussed Sonata, but did not specifically address the other medications at issue by name. He diagnosed the Claimant’s condition as “lumbalgia -- not otherwise specified.” According to Dr. Combs, treatment with intermediate strength or potent narcotic analgesics is not recommended for patients with chronic musculoskeletal pain because the drugs carry a liability for habituation, addiction, considerable cognitive dysfunction, and loss of alertness. Dr. Combs noted that the Commission adopted Spine Treatment Guideline allows up to eight weeks of conservative care for a soft tissue injury. He indicated that additional treatment should be justified by additional new or complex findings; there were no such findings in this case. He said he did not find indications for chronic prescription medications.
The preponderant evidence is that the Oxycontin CR and Sonata prescriptions were not medically necessary. This conclusion is based primarily on the potency of the drugs at issue. Although Dr. Baylan said the Claimant has had continued pain and needs help for his pain, he did not address the need for medications as potent as Oxycontin CR and Sonata continuing for almost two years post-injury or how they were related to the Claimant’s injury.
By contrast, Drs. Hood and Combs both stressed the potency of the medications. Oxycontin CR is controlled-release morphine. Both Sonata and Oxycontin CR carry a liability of habituation and addiction. Neither doctor thought the need for those drugs was related to the Claimant’s injury. The MRI of the Claimant’s spine was negative and the MRI of his brain did not show the Claimant’s brain symptoms were related to his compensable injury. The Claimant had no acute discal pathology as a result of his fall.
The Carrier’s proof concerning Oxyir failed because its experts did not expressly discuss that medication. It might have been referred to by another name or within a general classification, but the ALJ could not tell that from the record or from medical dictionaries. The Carrier will be ordered to pay $45.04 for the Oxyir.
V. FINDINGS OF FACT
- On ____, the injured worker in this case (Claimant) sustained a compensable work-related injury when he fell from scaffolding and lost consciousness.
- On the date of injury, the Claimant’s employer was insured for workers’ compensation insurance through American Home Assurance Company (Carrier).
- The patient’s injury caused pain in his neck, back, upper extremities, and chest area.
- The Claimant was treated by Salvador P. Baylan, M.D. for his injury.
- On November 20, 2000, Dr. Baylan prescribed Oxycontin CR, Oxyir, and Sonata for the Claimant.
- EZ Rx Pharmacies (Provider) filled the prescriptions described in Finding of Fact No. 5.
- The Provider billed the Oxycontin CR at $540.75, the Oxyir at $45.04, and the Sonata at $39.65; the amounts billed were the same as the maximum allowable reimbursement.
- The Claimant was still experiencing pain on November 20, 2000.
- Oxycontin CR is very powerful sustained release morphine.
- Sonata is not recommended for patients with chronic musculoskeletal pain.
- Oxycontin CR and Sonata carry a liability of habituation and addiction.
- A magnetic resonance imaging (MRI) of the Claimant’s spine was negative and an MRI of his brain did not show brain symptoms related to his compensable injury.
- The Claimant had no acute discal pathology as a result of his fall.
- There was no explicit evidence stating that the Claimant needed drugs as potent as Oxycontin CR and Sonata for his pain and sleep.
- The November 20, 2000, Oxycontin CR and Sonata prescriptions were not reasonably required by the nature of the Claimant’s injury.
- The Carrier did not present explicit proof concerning the necessity of the Oxyir prescription.
- The Texas Workers’ Compensation Commission Medical Review Division (MRD) issued an order on July 29, 2002, stating the Carrier should pay for the medications at issue. The Carrier requested a State Office of Administrative Hearings (SOAH) hearing to contest the MRD decision. There were no issues concerning the timeliness of the appeal.
- A hearing on this matter was held on December 16, 2002.
- Not less than 10 days before the hearing the parties received notice of the time, place and nature of the hearing; 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.
- The parties were allowed to respond and present evidence and argument on each issue involved in the case.
V. CONCLUSIONS OF LAW
- SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order. Tex. Labor Code Ann. §§ 402.073(b) and 413.031(k).
- Adequate and timely notice of the hearing was provided. Tex. Gov’t Code Ann. §§
2001.051 and 2001.052.
- The Carrier has the burden of proof in the case. 28 Tex. Admin. Code §148.21(h).
- Oxycontin CR and Sonata prescriptions were not medically necessary. Tex. Lab. Code Ann. § 408.021.
- The Carrier should not be required to pay for the Oxycontin CR and Sonata prescriptions.
- The Carrier failed to prove that the Oxyir prescription was not medically necessary.
- The Carrier should pay for the Oxyir prescription.
IT IS THEREFORE ORDERED THAT American Home Assurance Company pay EZ Rx Pharmacy $45.04 plus interest for the November 20, 2000, Oxyir prescription.
IT IS ORDERED FURTHER that EZ Rx Pharmacy’s claim for payment for Oxycontin CR and Sonata prescribed on November 20, 2000, be, and the same is hereby, denied.
Signed this the 10th day of February, 2003
JAMES W. NORMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- 28 Tex. Admin. Code (TAC)§ 148.21(h).↑
- Ex. 2 at 22.↑
- The use of morphine leads to physical dependance and if abused, psychic dependence. Stedman’s Medical Dictionary (27th ed. 2000) at 1131.↑
- Ischemia is defined as “local anemia due to mechanical obstruction (mainly arterial narrowing or disruption) of the blood supply.” Stedman’s at 924.↑
- Ex. 1 at 26-28.↑
- Ex. 1 at 28.↑
- 28 TAC § 134.1001.↑
- Ex. 3.↑