September 4, 2012
Kenny Zee (name changed for this summary), sustained a lower back injury at work on December 27, 2000. Diagnosis is chronic low back pain with radiculopathy and a history of lumbar fusion. Kenny has had multiple surgeries, including lumbar laminectomy and multi-level fusion. He has not received pain relief or found success following the surgeries. He is treating with Dr. Steven Morganstein every three to four months. Kenny also sees Dr. Stanley R. Goldman who is his family physician. Dr. Charles Gerlach is a physician in Dr. Stanley R. Goldman’s office and saw Kenny once when Dr. Stanley R. Goldman was on vacation.
The workers’ compensation insurance company, Lumbermens Underwriting Alliance, filed multiple Petitions to Review Utilization Review Determinations (“UR Petition”). The first UR Petition was filed on January 4, 2011, and concerned the reasonableness and necessity of “all medications, including, but not limited to Fentanyl, Fentora, Celebrex [and] Lyrica” prescribed to Kenny by Dr. Steven Morganstein from October 20, 2010, and ongoing.
The second UR Petition was filed on March 21, 2011, and concerned the reasonableness and necessity of “all treatment including but not limited to medications” provided to Kenny by Dr. Stanley R. Goldman from January 11, 2011, and ongoing.
The third UR Petition was filed on April 18, 2011, and concerned the reasonableness and necessity of “all treatment and medication” provided to Kenny by Dr. Charles Gerlach from January 10, 2011, and ongoing.
We filed on behalf of Kenny, a Petition to Review Medical Treatment and/or Billing on August 30, 2011, that alleged IRE was beyond 60 days of 104 weeks.
All Petitions were consolidated and a hearing was held in front of Judge Charles Clark. Kenny Zee testified that Dr. Steven Morganstein is his primary care provider in relation to the work injury. He sees Dr. Steven Morganstein every three to four months. Dr. Steven Morganstein prescribes Fentanyl patches, Actiq lollipops, Lyrica, Celebrex, Lidoderm patches, Oxycodone and Lexapro. Kenny testified that he would like to stop taking these medications, but he needs them for the pain. He stated that they help the pain sometimes and he might need higher doses. During one visit with Stanley R. Goldman, Kenny’s family physician, Kenny was prescribed Fentanyl, Lidoderm patches, Celebrex and Oxycodone. This was done because Kenny was between visits to Dr. Steven Morganstein. Kenny saw Dr. Charles Gerlach one time when Dr. Goldstein was on vacation. Dr. Charles Gerlach prescribed Fentanyl and Lisinopril, a blood pressure medication.
Kenny presented the Utilization Review Determination Face Sheet and report of Milton J. Klein, D.O., to address the UR Petition regarding Dr. Steven Morganstein’s prescribed medications from October 20, 2010, and ongoing. Milton J. Klein, D.O. spoke to Dr. Steven Morganstein on December 3, 2010. Dr. Steven Morganstein was not prescribing Celebrex and Lyrica during the period under review. Milton J. Klein, D.O. found that Dr. Steven Morganstein’s treatment was within the professional standards of care for ongoing chronic low back pain.
Kenny presented the Utilization Review Determination Face Sheet and report of Harold K. Gever, M.D. to address the UR Petition regarding Dr. Stanley R. Goldman’s treatment and medications prescribed from January 11, 2011, and ongoing. Harold K. Gever, M.D. found that given the patient’s history of three (3) failed back surgeries, the use of Celebrex, Fentanyl patches, Oxycodone, and Lidoderm was reasonable and necessary. He also determined that it was reasonable and necessary for Dr. Stanley R. Goldman to see Kenny every four (4) to six (6) months to monitor Kenny’s treatment and medication. Harold K. Gever, M.D. did not feel the use of Lotrel was reasonable and necessary.
Kenny presented the Utilization Review Determination Face Sheet and report of Lloyd Richless, M.D. to address the UR Petition regarding Dr. Charles Gerlach’s treatment and medications prescribed from January 10, 2011, and ongoing. Dr. Charles Gerlach saw Kenny on January 10, 2011, when Kenny appeared “to be withdrawing at this time. He is tremulous. He has put his current patch on 4 days (ago) and is now out of patches.” Dr. Charles Gerlach prescribed Fentanyl patches and Lisinopril for hypertension. Kenny was referred back to Dr. Stanley R. Goldman for his next visit, as Dr. Charles Gerlach was just covering Dr. Stanley R. Goldman for vacation. Lloyd Richless, M.D. concluded that Dr. Charles Gerlach’s treatments were all reasonable and necessary.
The employer presented February 28, 2011, Peer Review of Scott Naftulin, D.O., as well as Scott Naftulin, D.O.’s curriculum vitae. Scott Naftulin, D.O. found that the visits to Dr. Steven Morganstein’s office were reasonable and necessary. He also found the use of Duragesic patch every three days and Lidoderm patch every day to be reasonable and necessary. He noted that Fentora has only been approved for breakthrough pain in cancer patients and that Actiq and Fentora should not be used concurrently. He found the use of both of those medications (Fentora and Actiq) to be unreasonable and unnecessary from October 20, 2010, and ongoing. Lexapro is a medication for generalized anxiety disorder and is not reasonable and necessary.
The employer presented the May 27, 2011, Peer Review and the June 13, 2011 Clarification report of Jonathan Gelfand, M.D. Jonathan Gelfand, M.D. reported that prescriptions for Fentanyl patches, Oxycodone IR, Lotrel and Celebrex were all reasonable and necessary. He felt that Actiq was not reasonable and necessary because the use of more than two forms of narcotic analgesics should not be necessary; Actiq is indicated for breakthrough cancer pain, and Actiq is contraindicated in acute pain and not for use in chronic pain. Lyrica was also found to be not necessary because there is no evidence of peripheral neuropathy and its use did not give relief or reduce the use of narcotics. Lidoderm was also not necessary because there was no clear response to Lyrica.
Kenny’s counsel withdrew his petition regarding Dr. Stanley R. Goldman’s treatment where it involves the prescription of Lotrel. Kenny also withdrew his petition regarding Dr. Steven Morganstein’s care where it involves Actiq 600mcg lozenges. Kenny’s counsel also indicated the Review Petition regarding the IRE could be withdrawn due to the C&R (settlement) Agreement rendered the IRE issues moot.
Judge Clark made the following credibility determinations and findings of fact. Kenny’s testimony is credible and consistent with the evidence presented. Kenny requires the medications he is being prescribed by his various treating physicians. The Judge determined that Milton J. Klein, D.O.’s Utilization Review of Dr. Steven Morganstein’s treatment is the most credible and persuasive. Therefore, whenever there is a conflict between the opinions of Milton J. Klein, D.O. and any other physician of record, the Judge accepts the opinions of Milton J. Klein, D.O. With that determination, the Judge specifically finds as fact Actiq lozenges, Fentora tablets, Duragesic tablets, Lexapro tablets and Lidoderm patches prescribed on and after October 20, 2011, were all reasonable and necessary.
Judge Clark found the opinion of Harold K. Gever, M.D. to be most credible and persuasive in relation to the treatment by Dr. Stanley R. Goldman on and after January 11, 2011. Based on Harold K. Gever, M.D.’s opinion is found that office visits and prescriptions for Fentanyl patches, Lidoderm patches, Celebrex and Oxycodone IR are reasonable and necessary on and after January 11, 2011.
Judge Clark found the opinion of Lloyd Richless, M.D. to be the most credible in relation to the treatment by Dr. Charles Gerlach on and after January 10, 2011. The office visits and prescription for Fentanyl patches are reasonable and necessary.
Judge Clark issued an order dated June 1, 2012, that the three (3) UR Petitions filed by Employer are Denied and Dismissed. Kenny’s two (2) UR Petitions are granted. The employer remains responsible for payment of reasonable and necessary medical treatment causally related to Kenny’s December 27, 2000, work-related low back injury. This includes, but is not limited to, Actiq lozenges, Fentora tablets, Duragesic patches, Lexapro tablets and Lidoderm patches prescribed by Dr. Steven Morganstein on and after October 20, 2011; Dr. Stanley R. Goldman’s office visits and prescription for Fentanyl patches, Lidoderm patches, Celebrex, and Oxycodone on and after January 11, 2011; Dr. Charles Gerlach’s office visits and prescriptions for Fentanyl patches on and after January 10, 2011. The employer is not responsible for payment for prescriptions for Lotrel or Lisinopril which were prescribed for non-work-related hypertension.
