DECISION AND ORDER

This case is a dispute over whether Fidelity & Guaranty Insurance Company (Carrier) should reimburse VONO (Petitioner) $415.20 for a prescription medication. The medical necessity of the medication is the only issue to be resolved. The Administrative Law Judge (ALJ) concludes that Petitioner met its burden of proving the medication was medically necessary. Therefore, Carrier should reimburse Petitioner for the cost of the medication.

I. JURISDICTION, NOTICE, AND VENUE

There were no contested issues of jurisdiction, notice or venue. Those issues are addressed in the Findings of Fact and Conclusions of Law without further discussion here.

II. STATEMENT OF THE CASE

Administrative Law Judge Suzanne Formby Marshall convened a hearing in this case on December 13, 2004, at the State Office of Administrative Hearings (SOAH), William Clements

State Office Building, Austin, Texas. Carrier appeared through its attorney, Courtney Leech. Petitioner appeared through Nicky Otts, pharmacist. The record closed the same day.

III. DISCUSSION

A. INTRODUCTION

Claimant sustained a work-related injury to his lower back on ___, while unloading a truck. Since the date of the injury, Claimant has been treated with injections to the lumbar spine and the use of the prescription drugs Hydrocone/Apap, Carisoprodol^[1] and Neurontin. Carrier denied reimbursement of the medications for the disputed date of service, February 17, 2003, on the basis that they were not medically necessary.

Petitioner filed a timely Request for Medical Dispute Resolution. The Independent Review Organization (IRO) disagreed with Carrier that the prescription drug treatments Hydrocone/Apap and Neurontin were not medically necessary, but agreed with the Carrier on the denial of reimbursement for Carisoprodol. On May 11, 2004, the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC) issued its Findings and Decision. On May 24, 2004, Petitioner filed a timely request for a hearing before SOAH.

B. EVIDENCE AND ARGUMENTS

Petitioner

Petitioner is the dispensing pharmacy of the medication in issue. Petitioner submitted medical records as Petitioner’s Exhibits 1 and 2, which were admitted into evidence. Additionally, Petitioner called Rick Taylor, D.O., as a witness.

Petitioner relied upon the notes of Claimant’s physician, Dr. A. J. Morris, to support medical necessity for the medication. In a report dated February 17, 2003, Dr. Morris diagnosed Claimant

with lumbar radiculopathy, disc bulge at L4-5, disc protrusion at L5-S1, and annular tears. Dr.

Morris prescribed Lortab, Soma, and Neurontin to decrease pain, reduce spasm, and increase function. Petitioner’s Ex. 1, p. 2. On March 26, 2004, Dr. Morris submitted a letter of medical necessity in which he described Claimant’s condition and prescriptions. Dr. Morris maintains that Claimant needs all three medications to continue working and help him in his daily living. Petitioner’s Ex. 1, p. 1.

Dr. Rick Taylor practices occupational medicine and pain management in Palestine, Texas. He has been licensed since 1992. Dr. Taylor is board-certified by the American Board of Family Practitioners and is board-eligible for the American Academy of Pain Management. He reviewed the medical records in this case, including the peer review of Dr. Phillip Osborne. Carrier’s Ex. 1, pp. 8-11.

Dr. Taylor referred to a spinal MRI performed on Claimant on August 9, 2001, which showed a mild 2mm bulge at L4-5 with disc material mildly effacing the thecal sac and mildly narrowing both lateral recesses at this segment. The MRI also showed mild lumbar disc desiccation and annular tears at L1-S1. Carrier’s Ex. 1, p. 8. According to Dr. Taylor, Dr. Osborne’s diagnosis contradicts and minimizes the MRI findings when he states that “the MRI of the lumbar spine done after accident only showed bulging disc.” Furthermore, Dr. Taylor maintains that annular tears are not normal occurrences; in Dr. Taylor’s words “they are pathology, period.” Dr. Taylor testified that Dr. Osborne’s conclusion that there was “no positive objective evidence of any substantial finding in the lumbar spine” was contradicted by the nerve conduction test performed on Claimant, which indicated nerve impairment and findings consistent with lumbar radiculopathy. Carrier’s Ex. 1, p. 11.

Dr. Taylor testified that it is not unusual for Carisoprodol to be prescribed to a patient who has chronic muscle spasms. While there may be concerns about drowsiness, Dr. Taylor avers that in

the majority of patients who use Carisoprodol long term, the drowsiness goes away. Furthermore,

Dr. Taylor testified that there is nothing in the record to indicate that Claimant is developing an addiction to the medication. According to Dr. Taylor, patients who use certain medications on a long-term basis, such as Hyrdrocodone, often develop tolerance to them. This tolerance decreases their effectiveness in a patient; however, he does not find that to be the case with long-term use of Carisoprodol and Neurontin. As long as the imaging and diagnostic studies support an objective finding of intractable pain, Dr. Taylor testified that there is no reason not to prescribe medications such as Carisoprodol on a long-term basis.

Carrier

Crrier introduced into evidence Carrier’s Exhibit 1 containing 28 pages of medical records. Carrier relied primarily on the peer review performed by Dr. Osborne on January 26, 2003. Dr. Osborne concluded that Athere is no objective evidence of any substantial finding in the lumbar spine and, therefore, the medications at issue would be reasonable only in an acute phase, and not two years post injury. He asserts that Claimant has possibly built up an immunity to Carisoprodol to the extent that it is no longer helping with Claimant’s pain. Dr. Osborne recommended that Claimant be taken off narcotics and muscle relaxers and put on over-the-counter anti-inflammatory and pain medications. Carrier’s Ex. 1, p. 7.

Carrier notes that the IRO physician agreed that Carisoprodol was not medically reasonable and necessary and was not in compliance with the standard of care. The IRO reviewing physician suggested that there are muscle relaxants that have less propensity to cause sedation that may be used sporadically for muscle spasms.

C. ANALYSIS AND CONCLUSION

Having considered the evidence in this case, the ALJ finds that the medication Carisoprodol is reasonable and necessary to relieve Claimant’s symptoms of pain and muscle spasms resulting

from his injury. The ALJ finds the testimony of Dr. Taylor to be persuasive in that he agrees that the use of Carisoprodol is helping to relieve Claimant’s pain and allow him to continue working. Further, the medication is particularly indicated when there are annular tears, as in Claimant’s case. Dr. Taylor also considered the issue of possible addiction from continued use of the medication, but he found no signs of addiction by Claimant to the medication.

The Carrier did not rebut the testimony of Dr. Taylor and was unable to show that long-term use of Carisoprodol is per se unreasonable medical care. Carrier also failed to rebut the evidence offered by Petitioner as to the effects of Carisoprodol on this patient, i.e., he is able to work and perform the activities of daily living. While there may be a difference in opinion among doctors as to the most appropriate treatment for intractable pain, the treating physician in this case was able to provide a reasonable explanation for the continued medical necessity of Carisoprodol. Another physician, Dr. Taylor, concurred with the decision of the treating physician.

The ALJ finds that the evidence supports the use of Carisoprodol to relieve Claimant’s symptoms from muscle spasms. Consequently, the ALJ finds that Petitioner met its burden to prove that the medication was medically reasonable and necessary for this patient.

IV. FINDINGS OF FACT

1. Claimant sustained a work-related injury to his lower back on ___, and was diagnosed with lumbar radiculopathy.
2. On February 17, 2003, Claimant’s treating physician prescribed Lortab, Carisoprodol (also known as Soma), and Neurontin to decrease pain, reduce spasm, and increase function.
3. Carrier declined to reimburse Provider for the medications because it considered the medications not to have been medically necessary pursuant to a peer review.
4. Provider filed a timely Request for Medical Dispute Resolution.
5. The IRO disagreed with the Carrier, finding that the prescription drugs Lortab and Neurontin were medically necessary. The IRO agreed with the Carrier, however, that prescribing Carisoprodol to Claimant was not medically necessary.
6. On May 11, 2004, the MRD issued its Findings and Decision, which ruled that Provider was not entitled to reimbursement for the prescription drug Carisoprodol.
7. On May 24, 2004, Provider filed a timely request for a hearing before SOAH.
8. Notice of the hearing was sent to all parties on June 30, 2004.
9. The notice 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
10. to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
11. The hearing was held December 13, 2004. Provider and Carrier participated in the hearing, which was adjourned the same day.
12. By using Carisoprodol, Claimant is able to find relief from the pain of muscle spasms and continue working.
13. Carisoprodol is particularly indicated when annular tears are present, as in Claimant’s case.
14. There is nothing in the record to indicate that Claimant has become addicted to Carisoprodol.
15. The side effect of drowsiness associated with the use of Carisoprodol often goes away with long-term use.
16. The medication relieves Claimant’s symptoms of chronic pain and muscle spasms.

V. CONCLUSIONS OF LAW

1. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order, pursuant to Tex. Lab. Code Ann. § 413.031(k) and Tex. Gov’t Code Ann. ch. 2003.
2. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §2001.052.
3. Under 28 Tex. Admin. Code ‘ 148.21(h), Provider has the burden of proof in hearings, such as this one, conducted pursuant to Tex. Lab. Code Ann. ‘ 413.031.
4. The disputed service was medically reasonable and necessary under Tex. Lab. Code Ann. §408.021(a).
5. Carrier should reimburse Petitioner for the medication in dispute.

ORDER

Fidelity & Guaranty Insurance Company is required to reimburse VONO for the medication Carisoprodol provided to Claimant on February 17, 2003.

Signed February 11, 2005.

SUZANNE FORMBY MARSHALL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Soma is the generic name for Carisoprodol.↑