DECISION AND ORDER

I. DISCUSSION

__Petitioner and Claimant, sought review of the Findings and Decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission). On May 24, 2004, MRD, acting through Independent Review, Inc., an independent review organization (IRO), issued a decision denying Claimant’s request for reimbursement of pharmaceutical expenses. The Commission denied Claimant’s request for reimbursement because: (1) the medical records did not support the diagnoses of the underlying degenerative diseases and (2) the prescriptions were medically unnecessary. The Commission, through the IRO, also concluded Claimant should be considered for detoxification and substance rehabilitation.

This decision denies the relief sought by Claimant.^[1]

The hearing in this matter convened on April 7, 2005, at the State Office of Administrative Hearings (SOAH) in Austin, Texas, before administrative law judge (ALJ) Bill Zukauckas. Claimant represented himself, and Insurance Company of the State of Pennsylvania, Respondent and Carrier, was represented by Steven M. Tipton. The record was left open until April 17, 2005, for Claimant’s submission of additional exhibits and for Respondent’s submission of a request to ask additional questions. The record closed on April 17, 2005. On May 30, 2005, the docket was

reassigned to ALJ Paul Keeper who reviewed the entire record in preparation of this Decision and Order.

Claimant sustained a work-related injury on___, and was diagnosed as having a herniated disc. He underwent an anterior diskectomy and fusion at C5-C6 on July 11, 1997, and subsequently received cervical epidural injections. Since the surgery, he has had strong, ongoing, stabbing pain. Claimant also complains of migraines, pain in his right side, numbness of his fingers, mechanical neck and upper back pain, radiating upper extremity pain, and tingling. Since the date of his injury, Claimant has received prescriptions for pain relief for the following narcotics, muscle relaxants, pain relievers, sedatives, hypnotics, and antidepressants: Zoloft, Ambien, Baclofen, Lortab, Darvocet, hydrocodone/APAP, Temazepam, cyclopenzaprine, Tyloxin, Oruvail, carisoprodol, Valium, Vioxx, Restoril, Neurontin, Zanaflex, tizanadine, Flexeril, Duragesic (in patch form), OxyContin, and methadone. He also received prescriptions for Imitrex for migraine relief, and a prescription for Cipro, an antibiotic, for an unspecified infection.

Claimant was under the care of Mark Wren, M.D., from December 1997 through February 1999, and the care of Joseph Greenspan, M.D., from March 1999 to December 2001. During Dr. Wren’s care, Claimant was taking as much as 12 to 14 Darvocet pills per day and Zanaflex every time he takes Darvocet. In March 1999, Dr. Greenspan diagnosed Claimant with arachnoiditis and reflex sympathetic dystrophy (RSD)^[2] and recommended that Claimant be prepared for weaning from his medications. Then, in January 2000, Dr. Greenspan reported that Claimant is able to perform his obligations with the prescribed Oxycontin and is completely paralyzed without it. In July 2000, Dr. Greenspan reported that OxyContin allowed Claimant a more stable lifestyle as opposed to being bed ridden and suicidal.

Between May 2000 and August 2003, a wide variety of physicians examined Claimant: (1) Jeffrey C. Williams, M.D., a board certified anaesthesiologist; (2) Bill Berryhill, M.D., a board certified orthopedic surgeon; (3) Barbara Davidson, M.D., board certified in physical medicine and rehabilitation; and (4) Roshan Sharma, M.D., a physical medicine and rehabilitation specialist.

These physicians concluded that narcotic pain medication was not medically necessary to treat Claimant’s work-related injury and that Claimant should be weaned from the narcotic pain medication.^[3] A number of these physicians expressly refused to prescribe OxyContin for Claimant, but Claimant obtained prescriptions from other local physicians.

As recently as August 2003, Dr. Berryhill concluded there was no medical need for the prescription medication. He recommended a drug-weaning program.

The May 10, 2004, IRO decision authored by a board certified anaesthesia and pain management physician, concluded that substance seeking behavior and peripheral neuropraxia likely play a major role in this patient’s present medical condition and chronic pain syndrome.^[4]

Aaron Calodney, M.D., is Claimant’s current treating physician. Dr. Calodney concurs with Dr. Berryhill that Claimant’s records reflect no evidence of RSD or arachnoiditis. However, Dr. Calodney believes that Claimant’s medical condition requires the continued use of prescription medications to control his pain. Dr. Calodney’s predecessor, Dr. Greenspan, similarly contended that Claimant’s special needs required his use of high doses of powerful painkilling medications.

During the hearing, Claimant protested that the medical records introduced into evidence by Respondent made Claimant appear to be a drug addict. Claimant explained that he had not received OxyContin since February 2002. Claimant’s evidence included twenty-four receipts for prescription purchases between August 9, 2002, and February 4, 2003, for hydrocodone, Zanaflex, Duragesic, and tizanidine, each of which are narcotic pain medications. The medical necessity issue in this case is not restricted to the question of whether Claimant is using or seeking OxyContin. The issue is whether all of the prescribed narcotic pain medications are medically necessary.

Claimant had the burden of proof in this hearing. Claimant failed to prove by a preponderance of the evidence that his use of these prescription pain medications are medically necessary to treat his work-related injury.

The relief sought by Claimant is denied.

This order does not prevent Claimant from seeking other types of medically necessary care or from seeking reimbursement for the same. If Claimant can show in a subsequent proceeding that alternative forms of pain relief were attempted and determined to be unsuccessful after a reasonable course of treatment, Claimant may again seek reimbursement for the current (or similar) drug regimen.

II. FINDINGS OF FACT

1. Claimant sustained a work-related injury on___, and was diagnosed as having a herniated disc.
2. Claimant underwent an anterior diskectomy and fusion at C5-C6 on July 11, 1997, and subsequently received cervical epidural injections.
3. Since the surgery, Claimant has complained of migraines, pain in his right side, numbness of his fingers, mechanical neck and upper back pain, radiating upper extremity pain, and tingling.
4. Since the date of his injury, Claimant has received prescriptions for the following narcotics, muscle relaxants, pain relievers, sedatives, hypnotics, and antidepressants: Zoloft, Ambien, Baclofen, Lortab, Darvocet, hydrocodone/APAP, Temazepam, cyclopenzaprine, Tyloxin, Oruvail, carisoprodol, Valium, Vioxx, Restoril, Neurontin, Zanaflex, tizanadine, Flexeril, Duragesic (in patch form), OxyContin, and methadone.
5. Claimant was under the care of Mark Wren, M.D., from December 1997 through February 1999.
6. During Dr. Wren’s care, Claimant was taking as much as 12 to 14 Darvocet pills per day and Zanaflex every time he takes Darvocet.
7. Claimant was under the care of Joseph Greenspan, M.D., from March 1999 to December 2001.
8. In March 1999, Dr. Greenspan diagnosed Claimant with arachnoiditis and reflex sympathetic dystrophy (RSD) and recommended that Claimant be prepared for weaning from his medications.
9. However, in January 2000, Dr. Greenspan prescribed Oxycontin for Claimant and reported that Claimant was completely paralyzed without it.
10. In July 2000, Dr. Greenspan reported that Claimant was bed ridden and suicidal prior to the institution of OxyContin, after which he maintained a more stable lifestyle.
11. On May 30, 2000, Jeffrey C. Williams, M.D., a board certified anaesthesiologist, reviewed Claimant’s medical records.
12. Dr. Williams concluded that Claimant’s medical records were consistent with a diagnosis of chronic pain disorder and that no further treatment was reasonable as it related to the original injury of 1997.
13. On September 14, 2001, Bill Berryhill, M.D., a board certified orthopedic surgeon, disputed Dr. Greenspan’s diagnosis of arachnoiditis and RSD, determined that it was not possible to state that the Claimant continued to have effects from the original injury, and that Claimant should be weaned from the persistent use of narcotic pain medication.
14. On January 7, 2002, Barbara Davidson, M.D., board certified in physical medicine and rehabilitation, determined that Claimant had poor coping abilities for alternative pain control techniques.
15. Dr. Davidson refused to prescribe OxyContin and reported Claimant’s intention to find a local physician who would write a prescription for Oxycontin.
16. On January 22, 2002, Claimant was examined by Roshan Sharma, M.D., a physical medicine and rehabilitation specialist. Dr. Sharma refused to prescribe OxyContin for Claimant and recommended that Claimant cease using prescriptions for narcotics within two to three months.
17. Also on January 22, 2002, Claimant was examined by Aaron K. Calodney, M.D., who concurred that Claimant’s diagnosis did not include RSD or arachnoiditis, and who concluded that Claimant had a continuing need for prescription medications to control his pain.
18. On August 1, 2002, Claimant underwent a CT scan that did not confirm arthritic changes or canal or foraminal stenosis.
19. On April 6, 2003, Dr. Berryhill: (1) found no objective indication that correlate with an abnormality that could be attributed to the original injury, (2) found no medical need for the prescription medication, (3) recommended a drug weaning program, and (4) determined that Claimant actively sought narcotics by changing physicians.
20. On August 30, 2003, Dr. Berryhill reviewed Claimant’s medical records again and found that the additional medical records did not change any of his previous opinions.
21. On May 10, 2004, the IRO determined that: (1) the medical records presented did not support the diagnoses of the underlying degenerative diseases, (2) the prescriptions were unnecessary, (3) Claimant should be considered for detoxification and substance rehabilitation, and (4) substance seeking behavior and peripheral neuropraxia likely play a major role in this patient’s present medical condition and chronic pain syndrome.
22. Claimant timely requested a hearing to contest the Commission’s decision.
23. By letter dated July 16, 2004, the Commission issued a notice of hearing.
24. Administrative Law Judge Bill Zukauckas convened a hearing on April 7, 2005, in the hearing rooms of the State Office of Administrative Hearings. The record closed on April 17, 2005.
25. Claimant represented himself, and Steven M. Tipton represented Respondent.
26. On May 30, 2005, the case was administratively reassigned to Administrative Law Judge Paul Keeper, who reviewed the tape recording of the hearing and all of the documentary exhibits.

III. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act, 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(k) and Tex. Gov’t. Code Ann. ch. 2003.
3. Claimant timely requested a hearing in this matter pursuant to 28 Tex. Admin. Code (TAC) §§ 102.7 and 148.3.
4. Notice of the hearing was proper and complied with the requirements of Tex. Gov’t. Code Ann. ch. 2001.
5. An employee who has sustained 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. Tex. Lab. Code Ann. § 408.021(a).
6. Claimant had the burden of proof in this matter, which was the preponderance of evidence standard. 28 TAC §§ 148.21(h) and (i); 1 TAC § 155.41(b).
7. Claimant failed to prove by a preponderance of the evidence that the prescription drugs for which Claimant sought reimbursement were medically necessary as they related to the original work-related injury.

ORDER

THEREFORE, IT IS ORDERED that Claimant’s request for relief is DENIED.

Signed June 13, 2005.

PAUL D. KEEPER
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Although this Decision and Order denies Claimant relief based upon medical necessity, it should be noted that Claimant failed to establish the exact amount in dispute.↑
2. This diagnosis was disputed on September 14, 2001, by Bill Berryhill, M.D., a board certified orthopedic surgeon.↑
3. In addition, on August 1, 2002, Claimant underwent a CT scan, the results of which did not confirm arthritic changes or canal or foraminal stenosis.↑
4. Dr. Berryhill and other physicians cautioned against Claimant’s actively seeking narcotics by changing physicians.↑