DECISION AND ORDER

___,^[1] (Claimant) contested a Texas Workers’ Compensation Commission (Commission) Medical Review Division (MRD) decision, concluding that certain prescription medications he purchased were medically unnecessary. Liberty Mutual Insurance Company (Carrier) contended the Claimant is not entitled to medical dispute resolution because he did not comply with a Commission rule requiring him to submit a letter to the Carrier requesting reimbursement, a receipt indicating the amount paid, and a copy of the prescription-the Carrier said it did not receive notice of the dispute until the Claimant requested medical dispute resolution. The Administrative Law Judge (ALJ) concludes the evidence demonstrated that the Claimant adequately requested payment from the Carrier and was denied. The preponderant evidence shows the medications were medically necessary. This decision orders the Carrier to pay for the drugs, except for certain prescriptions that the Carrier’s doctor said were not provided to treat the compensable injury.

I. PROCEDURAL HISTORY

A hearing convened and closed in this case on March 16, 2005, before the undersigned ALJ at the State Office of Administrative Hearings, Austin, Texas. The Claimant appeared and was assisted by Commission Ombudsman Juan Mireles. The Carrier appeared and was represented by Charlotte Salter, Attorney. There were no objections to notice or jurisdiction.

II. DISCUSSION

A. Background

The Claimant suffered a compensable injury on ___, while trying to push a mop when his foot suddenly went out from under him. He landed on his back and jammed his right shoulder.

The medications in dispute include Vicodin (Hydrocodone), Soma (Carisprodol), Halcion (Triazolam), Valium (Diazepam), Viagra, and Atenolol filled by Wal-Mart Pharmacy 10-2427 between January 14, 2003, and May 12, 2004.

An independent review performed on July 19, 2004, concluded that the medications were medically unnecessary because they were not proven to be effective for chronic spine or enthesopathy pain.^[2]

B. Parties’ Positions

Ronald Washington, M.D.,^[3] has been the Claimant’s treating doctor since his 1997 injury. He diagnosed the Claimant with lumbar pain syndrome and shoulder enthesopathy (an injury to soft tissues connected with the shoulder). The Claimant’s current complaint relates to his lower back and pain radiating down his left side. He testified and provided reports saying the Claimant has persistent back and shoulder pain precipitated by mechanical activities such as lifting, bending, stooping, pushing, sudden movements of the head and neck, and reaching above the shoulder. He prescribed Vicodin for pain, Soma for neuromuscular inhibition, Halcion for pain disturbance, and Valium for tension. He said the Claimant’s pain without medication is eight to nine, on a scale of one to ten, with ten the highest. His pain without medication is five on the same scale. He said the Claimant exhibits all the indices of chronic pain. The Claimant describes the pain as “constant,’ meaning three-fourths of the time. Dr. Washington indicated the Claimant’s pain has caused difficulty with sleep and depression. He maintained the Claimant needed the medications for daily-life functioning.^[4]

Dr. Washington disagreed with a peer review by Karl D. Erwin, M. D., who, he said, based his opinion on a misguided interpretation of a zero percent impairment rating given to the Claimant in 1999. He said the rating resulted from a Carrier/Claimant agreement that the Claimant would accept the rating in return for TIB payments.^[5] He said the impairment rating does not represent the Claimant’s true condition and the Claimant’s MRI and physical findings do not support the rating.^[6]

Dr. Washington said the Claimant’s subjective complaints and his objective physical-exam findings are consistent with lumbar disc herniation with neuropraxia, which was demonstrated on a magnetic resonance imaging of the Claimant’s lumbar spine. He asserted that individuals with the same diagnosis often vary in their needs. He contended that peer reviewers seem to be unfamiliar with individual variation and the heterogeneous features that define an injury and outcome. He criticized peer reviewers as tending to lump injuries and outcomes into one homogenous category.^[7]

The Carrier argued that the Claimant did not comply with Commission procedures for receiving payment. It cited 28 Tex. Admin. Code (TAC) § 134.504, that requires an injured employee to submit to the insurance carrier a letter requesting reimbursement for pharmaceutical

expenses, a receipt indicating the amount paid, and a copy of the prescription. It cited the Carrier’s and the Claimant’s records,^[8] which do not show that the Claimant followed that procedure.

In January 1999, Walter Knight, M.D., concluded the Claimant had a zero impairment rating and that he could return to work without restrictions.^[9]

On February 28, 2003, Dr. Erwin concluded that future prescription medications were unnecessary. He based his opinion, at least in part, on Dr. Knight’s zero impairment rating, which, he said, indicated the Claimant had returned to a normal range of motion in his lumbar spine.^[10]

C. Analysis

The ALJ concludes the preponderant evidence is that the Claimant should be paid for the medications except for the Viagra and Atenolol, which Dr. Washington said were not related to the compensable injury.

The Carrier’s contention that the Claimant did not submit the materials required by 28 TAC §134.504 was based on the absence of any request in either the Carrier’s or the Claimant’s records. However, there is some evidence that the Claimant contacted the Carrier. Dr. Washington said, in an October 2, 2003, medical report, “The carrier through its adjustor informed [the] patient they will not pay for medication or dispute the necessity for treatment.’^[11] This shows there was a genuine dispute between the Claimant and the Carrier, as contemplated by § 413.031 of the Labor Code. The ALJ believes a statement by a Carrier adjuster that medication claims would be refused constitutes a waiver of the literal requirements of § 134.504. Dr. Washington’s statement was supported by a handwritten notation on the Claimant’s request for medical dispute resolution,^[12] which said, “denial of medication’ and “reimbursement of payment denied medication.’

The ALJ concludes the preponderant evidence shows the prescriptions were medically necessary. Dr. Washington’s live testimony was persuasive that the Claimant is unable to adequately function without medications. His statement that peer reviews do not always take into account individual variations between patients was also convincing. It appears that the Claimant’s zero impairment rating, upon which Dr. Erwin based his opinion, resulted from an agreement with the Carrier to make other coverage available. None of the other medical experts supported the IRO doctor’s opinion that the drugs are not effective for chronic spine or anthesopathy pain.

III. FINDINGS OF FACT

1. The Claimant suffered a compensable injury on ___, while trying to push a mop when his foot suddenly went out from under him. He landed on his back and jammed his right shoulder.
2. The Claimant’s treating doctor prescribed certain medications for him at Wal-Mart Pharmacy 10-2427, which the Claimant paid for between January 14, 2003, and May 12, 2004.
3. An adjuster for the Claimant’s employer’s workers’ compensation insurance carrier, Liberty Mutual Insurance Company, told the Claimant the Carrier would not pay for the medications.
4. The medications in dispute include Vicodin for pain, Soma for neuromuscular inhibition, Halcion for pain disturbance, Valium for tension, Viagra, and Atenolol.
5. The Viagra and Atenolol medications were not prescribed for the compensable injury.
6. The Claimant requested medical dispute resolution.
7. An independent review performed on July 19, 2004, concluded that the medications were medically unnecessary.
8. The Claimant requested a hearing not less than 20 days after receiving notice of the independent review organization determination.
9. The Claimant’s current complaint relates to his lower back pain and pain radiating down his left side.
10. The Claimant’s pain is precipitated by mechanical activities such as lifting, bending, stooping, pushing, sudden head and neck movements, and reaching above the shoulder.
11. The Claimant’s pain without medication is eight or nine on a scale of one to ten, with ten the highest. With medication, the pain is five on the same scale.
12. The Claimant exhibits the indices of chronic pain.
13. The Claimant has difficulty with sleeping and depression because of the pain. He describes the pain as “constant,”meaning three-fourths of the time.
14. The pain medications help the Claimant’s daily-living functioning and he would have difficulty functioning without them.
15. The Claimant’s subjective complaints and his objective physical-exam findings are consistent with the lumbar disc herniation with neuropraxia, that was shown on a magnetic resonance imaging of the Claimant’s lumbar spine.
16. Individuals with the same diagnosis often vary in their injuries and outcomes in important ways.

III. CONCLUSIONS OF LAW

1. 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.
2. Notice of the hearing was proper and timely. Tex. Gov’t. Code Ann. §§ 2001.051 and 2001.052.
3. The Vicodin, Soma, Halcion, and Valium provided from January 14, 2003, to May 12, 2004, by Wal-Mart Pharmacy 10-2427 were medically necessary. Tex. Labor Code Ann. §408.021.
4. Liberty Mutual Insurance Company should pay for the Vicodin, Soma, Halcion, and Valium provided from January 14, 2003, to May 12, 2004, as filled by Wal-Mart Pharmacy 10-2427.

ORDER

IT IS THEREFORE ORDERED that Liberty Mutual Insurance Company pay the cost of the Vicodin, Soma, Halcion, and Valium prescriptions for the Claimant from January 14, 2003, to May 12, 2004, as filled by Wal-Mart Pharmacy No. 10-2427.

Signed March 30, 2005

JAMES W. NORMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. For privacy reasons, the Claimant’s initials are used.↑
2. Ex. 2 at 56.↑
3. Dr. Washington is board certified in internal medicine.↑
4. Ex. 2 at 12-13.↑
5. The meaning of TIBs was not explained.↑
6. Ex. 2 at 41.↑
7. Ex. 2 at 37-38.↑
8. Ex. 1 and Ex. 2.↑
9. Ex. 2 at 7-8.↑
10. Ex. 2 at 24-25.↑
11. Ex. 2 at 34.↑
12. Ex. 1 at 3.↑