DECISION AND ORDER
Ray’s Town North Pharmacy (Petitioner) sought reimbursement of $1,106.62 from Reliance National Insurance Company (the Carrier) for prescription medication provided to an injured worker (the Claimant). Based on a review by an independent review organization (IRO), the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) found that the eight disputed prescriptions were not medically necessary and denied reimbursement. Petitioner challenged the MRD decision in a hearing. The Administrative Law Judge (ALJ) concludes that the Carrier should reimburse Petitioner $402.47, plus accrued interest for three of the prescriptions, but that Petitioner failed to show the other prescriptions were medically necessary for the treatment of the Claimant’s compensable injury.
I. Procedural History, Jurisdiction, and Notice
On April 7, 2003, ALJ Georgie B. Cunningham convened a hearing on this matter at the State Office of Administrative Hearings, 300 West 15th Street, Austin, Texas. Janet Witter, Petitioner’s employee, appeared telephonically for Petitioner, and Attorney Jane Lipscomb Stone appeared for the Carrier. The Commission did not participate in the hearing. The parties did not contest notice or jurisdiction, which are addressed in the findings of fact and conclusions of law. The hearing was closed the same day following the receipt of evidence.
The Claimant incurred a work-related injury_____________. She reported that her left leg “popped” and started hurting when she picked up a 40-pound sack and turned while holding it. She subsequently had a lumbar spine fusion at L4-L5, but continued to have chronic back pain developing into post laminectomy syndrome. By 1994, the Claimant was reporting pain in the L5-S1 region. The prescriptions for her pain treatment were the basis for this hearing. Between December 11, 2001, and May 21, 2002, Petitioner dispensed the following medications to the Claimant: Ultram, Hydrocodone, Gabitril, Keppra, and Prevacid. After the Carrier denied reimbursement based on a lack of medical necessity, Petitioner sought dispute resolution services from MRD. Subsequently, Petitioner appealed the MRD decision agreeing with the Carrier.
The IRO review was performed by an unidentified licensed medical doctor board certified in anesthesiology. The IRO physician noted that two of the Claimant’s previous doctors had terminated their doctor-patient relationship with her based on her history of drug-seeking behavior and excessive narcotic use. The IRO physician summarized the Claimant’s drug consumption, her frequent returns to her treating physician seeking additional drugs, her reports of continued pain, and some of the inconsistent statements she made related to her prescriptions. The IRO physician concluded that the Claimant obtained no significant relief from the prescribed medication and was abusing narcotics by taking them at larger doses or with greater frequency than prescribed. In the IRO physician’s opinion, it was medically unnecessary and unreasonable for the Claimant to have the prescription medications based on her lack of clinical benefit from their use and her documented excessive consumption.
At the hearing, Petitioner contended the Carrier should pay these claims because it had paid similar claims both before and after it denied these claims. Petitioner presented copies of its billing records and the medical reports from the prescribing physician, A. L. Shaw, M.D. Petitioner also presented a written opinion from the Carrier’s expert witness, N. F. Tsourmas, M.D., that the Ultram and Gabitril were reasonable medications for the Claimant.
The documents established that Dr. Shaw had an initial consultation with the Claimant on September 24, 2001. He acknowledged that she had medication compliance issues and reported that he had talked with her about a mandate to follow a medication management agreement. Dr. Shaw further indicated in his notes that he intended to place the Claimant on modest doses of Hydrocodone and Methadone and gradually escalate the Methadone and discontinue the Hydrocodone.
On subsequent dates, Dr. Shaw’s notes showed that the Claimant made frequent office visits, once only six days after an earlier visit. In spite of the pain medication she had been prescribed, the Claimant complained of high pain levels and at times accelerated her consumption of the medication without Dr. Shaw’s approval. When Dr. Shaw attempted to increase her Methadone level and decrease her narcotic consumption, she complained that she could not tolerate Methadone. Dr. Shaw’s records reveal, however, that he continued to prescribe Hydrocodone in spite of the Claimant’s failure to comply with his medication program. Some of Dr. Shaw’s records simply listed the medicine the Claimant was “currently” taking or that he was prescribing without further explanation of why he was not following his previous treatment plan to discontinue this medication.
The Carrier presented extensive medical records it had maintained for the Claimant and Dr. Tsourmas’s testimony. After reviewing the medical records, Dr. Tsourmas concurred that the Claimant had a failed surgical back and would need intermittent medical attention for the rest of her life. He agreed that the use of Ultram and Gabitril were reasonable, but concluded that it is medically improbable that the amount, duration, and intensity of pain that the Claimant reported suffering is from the L5-S1 fusion. He noted that Dr. Shaw’s records suggested the Claimant continued to seek narcotic medications. Dr. Tsourmas doubted whether Dr. Shaw knew of the Claimant’s history of drug use and volunteered to speak with him about the situation.
Dr. Tsourmas’ written opinion and the Carrier’s concession at the hearing that Ultram and Gabitril were medically necessary and reasonable entitle Petitioner to reimbursement for those prescriptions without further discussion.
If a carrier questions the medical necessity of the prescriptions, as it did in this situation, it is the physician who must provide documentation establishing medical necessity. Petitioner, as a pharmacist, does not determine the medical necessity for a prescription.
Dr. Shaw’s records, however, do not show why he continued to prescribe Hydrocodone, considering his acknowledgment of the Claimant’s medication compliance issues and his mandate that she follow a medication plan. For example, some of Dr. Shaw’s records do not reflect that the Claimant was continuing to take Hydrocodone or that he issued another prescription. Likewise, Dr. Shaw’s records do not address why he prescribed Prevacid or Keppra. Thus, Petitioner failed to show through the submission of the prescribing physician’s records that the prescriptions for Hydrocodone, Prevacid, or Keppra cured or relieved the effects naturally resulting from the Claimant’s compensable injury, promoted recovery, or enhanced the ability of the Claimant to return to work, as addressed in Tex. Lab. CodeAnn. § 408.021.
Moreover, Petitioner’s assertion that previous payments by the Carrier for the same or similar prescriptions entitled it to payment fails. While it is unfortunate that Petitioner relied on prior claim payments, reliance on prior payments does not guarantee the right to future payments. Thus, Petitioner failed to meet its burden of proving that the medications other than Ultram and Gabitril were medically necessary for the treatment of the Claimant’s compensable injury. Additional facts and reasoning in support of this decision are set forth in the findings of fact, and the legal conclusions derived from those facts appear in the conclusions of law.
IV. Findings of Fact
- On_________, an injured worker (the Claimant) incurred a work-related injury, which eventually resulted in her having a fusion at L4-L5. The Claimant continued to have chronic back pain developing into post laminectomy syndrome and pain in the L5-S1 region.
- When the Claimant was injured, Reliance National Insurance Company (the Carrier) provided workers’ compensation insurance to her employer.
- On September 24, 2001, A. L. Shaw, M.D. had an initial consultation with the Claimant.
- Between December 11, 2001, and May 21, 2002, Ray’s Town North Pharmacy (Petitioner) sought reimbursement of $1,106.62 from the Carrier for the prescriptions written by Dr. Shaw and dispensed to the Claimant:
- 12/11/01 100 Ultram $ 99.79;
- 12/11/01 100 Gabitril 149.09;
- 12/11/01 100 Hydrocodone w/APAP 101.99;
- 02/06/02 100 Hydrocodone 93.89;
- 05/21/02 150 Hydrocodone BIT/ACET 155.09;
- 05/21/02 30 Prevacid 153.09;
- 05/21/02 100 Keppra 200.09;
- 05/21/02 150 Ultram 153.59
- The Carrier concluded that the prescription medications for the Claimant were medically unnecessary and denied reimbursement.
- Petitioner requested dispute resolution services from the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission).
- On October 31, 2002, an independent review organization (IRO) agreed with the Carrier that the prescriptions were not medically necessary.
- Based on the IRO opinion, MRD issued its decision on November 12, 2002, denying Petitioner’s request for reimbursement.
- On December 2, 2002, Petitioner filed a request for a hearing by the State Office of Administrative Hearings (SOAH).
- On December 30, 2002, the Commission issued a hearing notice which contained a statement of the time, place, and nature 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.
- The Carrier conceded that the prescriptions for Ultram and Gabitril were medically necessary for the Claimant.
- Dr. Shaw’s treatment notes do not address why he prescribed Prevacid or Keppra.
- Petitioner did not present any other evidence addressing why it might be medically necessary for the Claimant to take Prevacid or Keppra.
- As of September 24, 2001, two other physicians had terminated their doctor-patient relationship with the Claimant based on her excessive narcotic usage and addictive behavior.
- In his treatment notes for September 24, 2001, Dr. Shaw acknowledged that the Claimant had medication compliance issues and that he had talked with her about a medication management agreement with a mandate that she follow the medication program.
- Dr. Shaw decided to place the Claimant on modest doses of Hydrocodone and Methadone and gradually escalate the Methadone and discontinue the Hydrocodone.
- As of October 3, 2001, the Claimant had stopped taking the Methadone and had taken three times the amount of Hydrocodone than had been prescribed.
- During the Claimant’s office visit on October 3, 2001, Dr. Shaw noted that she had a medication management problem.
- On October 3, 2001, Dr. Shaw told the Claimant that he would not refill the Hydrocodone because he believed patients with medication management problems do not need short-term drugs.
- Dr. Shaw saw the Claimant again on October 10, 2001, at which time he prescribed Hydrocodone/APAP.
- By November 1, 2001, the Claimant had been on an increased Hydrocodone dose since October 10, 2001, without improvements in her pain levels.
- On November 27, 2001, the Claimant had a RACZ Peridural Lysis after which she reported about 50 percent reduction in her pain scale.
- Dr. Shaw did not indicate why he did not continue pursuing alternative pain relief treatments for the Claimant considering her medication management problems and his previous comments about Hydrocodone.
- On December 11, 2001, Dr. Shaw decided to leave the Claimant on her current dose of Hydrocodone.
- Dr. Shaw did not address why he decided to leave the Claimant on Hydrocodone considering her tendency to engage in excessive narcotic usage and her medication management problems.
- Following a February 6, 2002, office visit, Dr. Shaw noted the Claimant was having some problems with medication, but continued the Claimant’s Hydrocodone use without addressing the reason for its continuation.
- Dr. Shaw examined the Claimant on May 21, 2002, and increased her Hydrocodone prescription although she reported decreased pain level from her examination on April 22, 2002.
- Dr. Shaw’s treatment notes do not explain why he increased the Claimant’s Hydrocodone prescription on May 21, 2002.
V. Conclusions of Law
- The Commission has jurisdiction over this matter pursuant to the Texas Workers' Compensation Act, Tex. Lab. CodeAnn.§ 413.031.
- SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. CodeAnn. § 413.031(d) and Tex. Gov’t Code Ann. ch. 2003.
- Petitioner timely filed its request for a hearing, as required by 28 Tex. Admin. Code (TAC) §148.3.
- Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann.§2001.052.
- Based on Finding of Fact No. 11, the prescriptions for Ultram and Gabitril were medically necessary, as specified in Tex. Lab. Code Ann. § 408.021.
- Petitioner failed to show that the prescriptions for Hydrocodone, Prevacid, or Keppra were medically necessary, as specified in Tex. Lab. Code Ann. § 408.021.
- Based on Conclusion of Law No. 5, Petitioner is entitled to reimbursement for Ultram and Gabitril.
- Based on Conclusion of Law No. 6, Petitioner is not entitled to reimbursement for Hydrocodone, Prevacid, or Keppra.
Reliance National Insurance Company shall reimburse Ray’s Town North Pharmacy $402.47 plus accrued interest for the Ultram and Gabitril prescriptions. Reliance National Insurance Company does not have to reimburse Ray’s Town North Pharmacy for the other prescriptions at issue.
Signed this 5th day of June, 2003.
GEORGIE B. CUNNINGHAM
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS
- Although Petitioner sought reimbursement of 1114.43, the prescription amounts total $1,106.62.↑