DECISION AND ORDER

This case is a dispute over whether Insurance Company of the State of PA., (Carrier) should reimburse Highpoint Pharmacy (Respondent) for prescription medications provided to an injured worker (Claimant) from February 17, 2003, until May 2, 2003, in the amount of $2,784.19. The Administrative Law Judge (ALJ) concludes that Petitioner has not met its burden of proving the medications were not medically necessary. Therefore, Carrier should reimburse Respondent for the cost of the medications in the amount of $2,784.19.

I.PROCEDURAL HISTORY, NOTICE, AND JURISDICTION

Administrative Law Judge (ALJ) Penny A. Wilkov conducted a hearing on January 25, 2005, at the State Office of Administrative Hearings (SOAH), William P. Clements Building, 300 West 15th Street, Austin, Texas. Carrier appeared through Attorney Steven M. Tipton. Respondent appeared through its designated representative, Nicky Otts. The record closed the day of the hearing. The parties did not contest notice or jurisdiction.

II.DISCUSSION

A.Background

Claimant sustained a work-related back injury on ___, when she lifted multiple cans of soda after scanning them at the register and felt a pop in the mid-lumbar region. Claimant has been diagnosed with lumbar radiculopathy and failed L4-S1 lateral gutter fusion.^[1] Claimant’s history of treatments has included three surgeries: a lumbar fusion at L4-5 and L5-S1, an anterior lumbar interbody fusion with removal of hardware, and a laminectomy and facetectomy. She has also received medications, chiropractic care, physical therapy, injections, work hardening, a TENS unit, and an epidural block, and had numerous diagnostic procedures performed including multiple x-rays and MRIs, CT scans, discograms, and electrodiagnotic tests.^[2] Claimant experiences chronic pain, numbness, and tingling in her hands and shoulders, walks with the use of a cane and walker, and has not returned to work.

Carrier denied payment as medically unnecessary, based upon a peer review, the following medications prescribed by Claimant’s physician, Jacob Rosenstein, M.D., and filled by the pharmacy: Celebrex, Tizanidine, Neurontin, Darvocet, and Carisoprodol. In the Independent Review Determination, the IRO reviewer, a family practice physician, found that the medications were medically necessary and stated:

This patient obviously has a ‘failed back.’ The patient has a chronic pain syndrome. The patient obviously is in need of long term indefinite, medical care including medication. These medications are totally appropriate.^[3]

B. Evidence and Argument

Carrier

Carrier presented Claimant’s medical records and called Aaron L. Combs, M.D., an orthopedic surgeon and disability evaluating physician specialist, as a witness. Carrier argued that the medications were not medically necessary for several reasons.

First, Carrier contended that the particular medications were not appropriate or necessary for Claimant’s condition. Celebrex is a non-steroidal anti-inflammatory medication particularly suited to patients with gastrointestinal (GI) disorders by providing stomach lining protection. Here, Carrier maintained that there was no indication that Claimant was at risk of GI complications and therefore, Claimant should have been treated with an over-the-counter anti-inflammatory such as ibuprofen. Similarly, according to Carrier, Tizanidine was inappropriately prescribed since it is a muscle relaxer commonly prescribed for acute spasms and not for chronic long-term use due to the risk of tolerance and dependance. Carrier also argues that Neurontin was not medically necessary since Neurontin is classified as an anti-seizure medication and not approved by the FDA for chronic back pain. Likewise, Darvocet, a synthetic opiod, was incorrectly prescribed, according to Carrier, since it was developed as a cancer pain drug and is not recommended for prolonged usage. Lastly, Carrier argues that the muscle relaxer, Carisoprodol, shouldn’t have been prescribed since it carries a similar risk of dependance and tolerance when used long-term.

Second, Carrier contends that the medications were being used to treat conditions unrelated to the initial injury. Carrier points out that the nature of the injury began as a simple strain and nine years later, Claimant has had numerous back surgeries and complications, including carpal tunnel syndrome, not related to the initial injury. According to Carrier, many of these medications were being used to treat these other unrelated conditions.

Finally, Carrier disputes that Claimant’s pain is directly related to her injury since Claimant suffers from “chronic pain syndrome,” a non-specific pain that persists beyond normal recovery parameters. Carrier argues that Claimant would be better served by gradually decreasing and eventually discontinuing the medication and instead, focusing on a home exercise program of stretching and strengthening of the lumbar region with non-prescription analgesics or anti-inflammatories taken as necessary.

Respondent

Respondent is the dispensing pharmacy of the medications in issue. Respondent presented Claimant’s medical records and called Rick Taylor, D. O., an occupational medicine practitioner and pain management specialist, as a witness.

Respondent pointed out that Claimant had suffered a serious injury resulting in several surgeries and currently suffers from failed back syndrome, a condition denoting unsuccessful multiple back surgeries. During the time period of disputed services, February 17, 2003, through May 2, 2003, Claimant’s physician, Jacob Rosenstein, M.D., prescribed Celebrex for inflammation, Tizanidine and Carisoprodol as a muscle relaxant, and Neurontin and Darvocet for pain.

Respondent contended that the Celebrex prescribed was a reasonable and necessary medication for inflammation and relief from pain, without the possible side effect of GI bleeding from prolonged usage. Respondent pointed out that Celebrex has prophylactic properties to prevent the onset of GI problems with long-term usage. The two muscle relaxers, Tizanidine and Carisoprodol, according to Respondent, prescribed together were appropriate because Tizanidine has sedative properties which enabled Claimant to sleep while the Carisoprodol was for daytime use. Since the Tizanidine was prescribed once daily and the Carisoprodol was given twice daily, Respondent argued that this was evidence of the intended tandem use of these medications. Respondent further contended that the Neurontin, an anti-seizure medication, is commonly prescribed by pain management specialists for radicular pain caused by irritated nerve roots. According to Dr. Taylor, it is common practice to prescribe this drug for radicular pain although it was FDA-approved as anti-seizure medication. Darvocet was prescribed as a mild opiod analgesic, which according to Respondent, was appropriate considering that Claimant had failed back syndrome and intractable low back pain and the amount prescribed, two times per day, is considered a low dose.

Respondent further agrees with the IRO reviewer’s statement that “the patient is being managed, on a grand scale, on fairly ‘low grade’ medication is an accomplishment in and of itself, particularly when Claimant has failed back syndrome.”^[4]

C. Applicable Law

Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.§§ Tex. Lab. Code Ann.§ 401.011(19).

D. Analysisand Conclusion

The testimony and evidence established that the medications prescribed in this case, Celebrex for pain, Tizanidine and Carisoprodol as a muscle relaxant, Neurontin for radicular

pain, and Darvocet for pain, during the time period in issue, February 17, 2003, until May 2, 2003, were reasonable and necessary to relieve Claimant’s pain, prevent muscle spasm, and preclude inflammation.

The medical records reflect that a twenty-eight-page peer review was written by Stanley J. Hite, M.D., a neurosurgeon. The peer review thoroughly and chronologically discussed Claimant’s past history of treatments and complaints, including some significant behavioral indicators of the extent of injury and pain experience by Claimant. For instance, the peer review discusses that Claimant’s use of the walker and cane has left her hands and wrists so sore that she uses her elbows to get in and out of bed and relates that she was barely able to function at her activities of daily living.^[5]

Based on these circumstances, including evidence of the extent of injury and the types and dosage amounts of the medications in issue, the evidence supports that Claimant’s use of the medications was not excessive or disproportionate to the symptoms she was experiencing and related to the initial injury. The evidence also indicated that Claimant was monitored for signs of addiction or dependence by the low-dosage amounts that she was given and there is no evidence that Claimant used the medications inappropriately. Although Respondent does concede that these medications are less efficacious over time and could lead to dependence, it is a fair trade-off for relief of Claimant’s symptoms.

In conclusion, the ALJ finds that Carrier did not meet its burden of proof that the medications prescribed from February 17, 2003, until May 2, 2003, were not medically necessary.

III. FINDINGS OF FACT

1. Claimant sustained a work-related back injury on ___, when she lifted multiple cans of soda after scanning them into the register and felt a pop in the mid-lumbar region.
2. Claimant has been diagnosed with lumbar radiculopathy and failed L4-S1 lateral gutter fusion.
3. Claimant’s history of treatments has included three surgeries: a lumbar fusion at L4-5 and L5-S1, an anterior lumbar interbody fusion with removal of hardware, and a laminectomy and facetectomy. She has also received medications, chiropractic care, physical therapy, injections, work hardening, a TENS unit, and an epidural block, and had numerous diagnostic procedures performed including multiple x-rays and MRIs, CT scans, discograms, and electrodiagnotic tests.
4. Claimant experiences chronic pain, numbness, and tingling in her hands and shoulders, walks with the use of a cane and walker, and has not returned to work.
5. Claimant has failed back syndrome, a condition denoting unsuccessful multiple back surgeries, as well as chronic pain syndrome, a non-specific pain that persists beyond normal recovery parameters.
6. From February 17, 2003, until May 2, 2003, Jacob Rosenstein, M.D., prescribed Celebrex for pain, Tizanidine and Carisoprodol as a muscle relaxant, Neurontin for radicular pain, and Darvocet for pain.
7. Highpoint Pharmacy (Respondent) filled Claimant’s February, March, April, and May, 2003 prescriptions from Dr. Rosenstein. Respondent then billed Insurance Company of the State of PA., (Carrier) $2,784.19 for the medications.
8. Carrier declined to reimburse the medications, as medically unnecessary, based upon a peer review.
9. Based on Carrier’s denial, Respondent sought medical dispute resolution through the Texas Workers’ Compensation Commission (Commission). The matter was referred to an Independent Review Organization (IRO) designated by the Commission for the review process. The IRO determined that the medications were medically necessary treatment for Claimant’s compensable injury.
10. Carrier then requested a hearing before the State Office of Administrative Hearings. Administrative Law Judge (ALJ) Penny A. Wilkov conducted a hearing on January 25, 2005, at the State Office of Administrative Hearings (SOAH), William P. Clements Building, 300 West 15th Street, Austin, Texas. Carrier appeared through Attorney Steven M. Tipton. Respondent appeared through its designated representative, Nicky Otts.
11. From February 17, 2003, until May 2, 2003, the medications prescribed in this case were reasonable and necessary to relieve Claimant’s pain, prevent muscle spasm, and preclude inflammation.
12. The medications have relieved Claimant’s symptoms resulting from the injury.
13. The use of the medications was not excessive or disproportionate to the symptoms Claimant was experiencing.
14. Claimant was monitored for signs of addiction or dependence as indicated by the low dosage prescribed and Claimant did not use the medications inappropriately.

IV. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to the Texas Workers’ Compensation Act, specifically Tex. Labor Code Ann. §413.031(k), and Tex. Gov’t Code Ann. ch. 2003.
2. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and 28 Tex. Admin. Code ch. 148.
3. The request for a hearing was timely made pursuant to 28 Tex. Admin. Code § 148.3.
4. Adequate and timely notice of the hearing was provided according to Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
5. Carrier has the burden of proof in this matter. 28 Tex. Admin. Code §§ 148.21(h) and 133.308(w).
6. Carrier failed to establish, by a preponderance of the evidence, that the disputed services were not medically reasonable and necessary under Tex. Labor Code Ann. §408.021(a).

ORDER

THEREFORE IT IS ORDERED that Insurance Company of the State of PA. reimburse Highpoint Pharmacy the sum of $2,784.19 plus applicable interest for the Celebrex, Tizanidine, Carisoprodol, Neurontin, and Darvocet, provided to Claimant between February 17, 2003, and May 2, 2003.

Signed March 2, 2005.

PENNY A. WILKOV
Administrative Law Judge

STATE OFFICE OF ADMIN

1. 1 Respondent’s Exhibit B, pages 2-4 (October 26, 1998, Examination by Jacob Rosenstein, M. D.)↑
2. 2 Petitioner’s Exhibit A, pages 41-69.↑
3. 3 Respondent’s Exhibit C, pages 1-5 ( Medical Review of Texas, Independent Review Organization Report, April 12, 2004).↑
4. 4 Respondent’s Exhibit C, page 5.↑
5. 5 Petitioner’s Exhibit A, page 62 and 63.↑