Date Submitted: October 8, 2013
Henry C. Davis, Esquire Doroshow, Pasquale, Krawitz & Bhaya.
Luciana M. Gorum, Esquire Chrissinger and Baumberger.
This is my decision on Michael Evans' appeal of the Industrial Accident Board's finding that certain medications he was taking are not reasonable and necessary for treatment of his wrist, arm and shoulder injuries and are therefore not compensable under the workers' compensation laws.
STATEMENT OF THE CASE
Evans was injured while employed by Johnny Janosik, Inc. Janosik operates a furniture store in Laurel, Delaware. Evans was injured on April 7, 2005. Evans was holding a headboard on the roof of a golf cart with his right hand when the wind blew the headboard over, causing Evans' right arm to be pushed behind him and pinned in that position for several minutes before help could arrive. Evans experienced pain and swelling in his right wrist, arm and shoulder. Evans underwent arthroscopic surgery on his right wrist. The surgery did not provide Evans with sufficient relief. Janosik acknowledged that Evans' injuries were compensable and paid for his workers' compensation benefits. Since the accident, Evans has been treated by several doctors over the years for chronic pain. Evans is currently being treated by Jay I. Freid, M.D.
Evans filed a petition in November 2009 seeking payment for certain medications that he was taking to treat his injuries. Janosik did not dispute the medications that Evans was taking to treat his pain,  but it did dispute the medications Evans was taking to treat his anxiety, anger, depression and psychotic disorder. The Board held a hearing on May10, 2010. The hearing focused on the medications that Janosik contested and whether they were reasonable and necessary for the treatment of Evans' injuries. The Board found that all of the medications that Evans was taking were reasonable and necessary for the treatment of his injuries and were therefore compensable. The Board then awarded Evans $9, 358.08 for outstanding prescription medication expenses that he had incurred.
Janosik filed for Utilization Review in 2011 to determine whether Evans' use of Hydrocodone, Klonopin, Cymbalta and Zanaflex was compliant with the Delaware Workers' Compensation Health Care Practice Guidelines. The Utilization Review found that all of the medications were compliant with the guidelines except for one, Zanaflex. Both parties appealed the Utilization Review decision to the Board. The parties resolved their dispute and entered into a joint stipulation on November 15, 2011. According to the joint stipulation, Janosik agreed to withdraw its appeal and to not challenge the compliance of Evans' medications with the guidelines for at least six months.
Janosik waited for six months and then filed for a second Utilization Review on May 23, 2012 to determine whether Evans' use of Hydrocodone, Klonopin and Cymbalta was compliant with the guidelines. The Utilization Review found that the medications were compliant with the guidelines in a decision dated June 19, 2012. Janosik appealed the decision to the Board.
The Board held a hearing on January 14, 2013. Janosik argued that Evans' use of Hydrocodone, Klonopin and Cymbalta was not reasonable and necessary for the treatment of his injuries. Richard I. Katz, M.D., testified on behalf of Janosik. Dr. Katz is board certified in psychiatry, neurology, and clinical neurophysiology electrodiagnosis. Dr. Katz examined Evans on October 18, 2010, September 22, 2011, and June 26, 2012. Dr. Katz also reviewed Evans' medical records and the June 19, 2012 Utilization Review decision.
Dr. Katz told the Board that his physical examinations of Evans showed no objective findings for Evans' complaints of pain and that he could not find any reason for Evans' continued use of narcotic medications other than his subjective complaints of pain. Dr. Katz also told the Board about the harmful effects of the continued use of high-dose narcotics, how physicians have to be careful when prescribing such medications, and the need to question why the patient is complaining about pain. Dr. Katz concluded by telling the Board that the narcotic medications Evans was taking were not reasonable and necessary for the treatment of his injuries. Evans did not testify at the hearing and he did not present any witnesses on his behalf. Evans did argue that the Board was bound by its prior decision in this case and the agreements between the parties.
The Board rejected Evans' argument and accepted Dr. Katz's testimony and found that Evans' use of Hydrocodone, Klonopin and Cymbalta was not reasonable and necessary for the treatment of his injuries and therefore ...