DECISION AND ORDER

I. PROCEDURAL HISTORY

___ (Claimant) appealed the decision of Ziroc, an independent review organization certified by the Texas Department of Insurance, in Texas Workers= Compensation Commission (TWCC) Medical Review Division tracking number M5-03-1882-01 denying reimbursement for the prescription drug Tizanidine^[1] in the amount of $9.59.

The Administrative Law Judge convened a hearing October 29, 2003. Claimant appeared pro se via telephone and was assisted by Luz Loza, a TWCC ombudsman. The Insurance Company of the State of Pennsylvania (Carrier) was represented by Steven M. Tipton, attorney. At the conclusion of the hearing, the record was closed.

II. EVIDENCE AND BASIS FOR DECISION

The documentary record in this case consisted of 75 pages of records submitted by Claimant (Exh. 1), and a packet of unnumbered records submitted by Carrier (Exh. 2). Additionally, Claimant testified telephonically at the hearing.

The issue presented is whether Carrier should reimburse Claimant $9.59 for the prescription drug Tizanidine. Carrier denied payment on the basis that the documents submitted for review did not establish medical necessity for the prescription.

Claimant, a 57-year old female, suffered a compensable injury to her back on ___, while working as a custodian. She has received extensive treatment, which on November 13, 2000, culminated in an interbody fusion at L5-S1, bilateral posterolateral fusion at L5-S1 with bone graft, and non-segmental instrumentation at L5-S1. Claimant has continued to experience post-operative difficulties, including pain. Treatment consisting of physical therapy and pain medication has not relieved Claimant’s pain. Her treating physician prescribed her various medications, including Tizanidine.

Claimant argued that she received some relief from use of the medication. Carrier argued that the documentary record does not support the use of an anti-spastic drug. Spasms are mentioned in the documentary record in notes from pre-surgical examinations of July 13, 2000, and August 28, 2001. Specifically, Claimant complained to her treating physician of increasing muscle spasms in the lower back. (Exh. 1, pages 8, 10, and 20). Carrier pointed out spasms were not mentioned in physician notes of August 7, 2002, when the drug was prescribed by telephone without an examination. (Exh. 1, page 56). Finally, Claimant was examined January 20, 2003, and the examining physician stated that he is not quite sure that Claimant is having sufficient muscle spasms to provide her with Zanaflex. (Exh. 2).

Based on the evidence, the ALJ concludes that Claimant’s appeal should be denied because she did not prove by a preponderance of evidence that the drug was necessary for treatment of the compensable injury. Claimant’s treating physician did not make an objective finding of muscle spasms prior to prescribing the drug. Rather, he prescribed the drug by telephone without an examination because Claimant requested it. The earlier mention of muscle spasms in the documentary record were notes from examinations by physicians other than the prescribing physician.

III. FINDINGS OF FACT

1. On ___, ___ (Claimant) suffered a compensable injury to her lower back while working as a custodian.
2. Claimant’s injury is covered by worker’s compensation insurance written for the Claimant’s employer by the Insurance Company of the State of Pennsylvania (Carrier).
3. Claimant has received extensive treatment, which on November 13, 2000, culminated in an interbody fusion at L5-S1, bilateral posterolateral fusion at L5-S1 with bone graft, and non-segmental instrumentation at L5-S1.
4. Claimant has continued to experience post-operative difficulties, including pain.
5. Claimant’s treating physician prescribed Tizanidine on July 7, 2002, via telephone because she requested a muscle relaxer.
6. Claimant’s treating physician had not examined Claimant immediately prior to prescribing Tizanidine.
7. Claimant’s treating physician did not document that Claimant was suffering from muscle spasms.
8. Tizanidine is a skeletal muscle relaxant used to treat muscle spasms.
9. Claimant timely requested dispute resolution by the Medical Review Division of the Texas Workers= Compensation Commission (TWCC).
10. On July 17, 2003, the TWCC’s Medical Review Division issued its order denying reimbursement following review of the decision of the independent review organization.
11. The Commission sent notice of the hearing to the parties on September 10, 2003. The hearing notice informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
12. The hearing was held on October 29, 2003, and all parties appeared and participated.

IV. CONCLUSIONS OF LAW

1. The Texas Workers= Compensation Commission (TWCC) has jurisdiction to decide the issues presented pursuant to Tex. Lab. Code Ann. ‘ 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 Tex. Lab. Code Ann.’ 413.031 and Tex. Gov=t Code Ann. ch. 2003.
3. The Notice of Hearing issued by TWCC conformed to the requirements of Tex. Gov=t Code Ann. ‘2001.052 in that it 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 section of the statutes and rules involved; and a short plain statement of the matters asserted.
4. Claimant has the burden of proving by a preponderance of the evidence that it should prevail in this matter. Tex. Lab. Code Ann. ‘ 413.031.
5. Based on Findings of Fact Nos. 5 – 8 and Conclusion of Law No. 4, Carrier is not required to reimburse Claimant.

ORDER

IT IS, THEREFORE, ORDERED that the Insurance Company of the State of Pennsylvania shall not be required to reimburse ___ (Claimant) for the amount claimed.

Signed December 15, 2003.

MICHAEL J. BORKLAND
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Tizanidine is the generic form of Zanaflex. The drug is a skeletal muscle relaxant used to treat muscle spasms associated with multiple sclerosis or spinal cord injuries. It works by blocking nerve impulses (or pain sensations) that are sent to the brain.↑