DECISION AND ORDER

This case is an appeal by Vladimir Redko, M.D. from a decision by an Independent Review Organization (IRO) in a medical necessity dispute initiated before the Texas Workers’ Compensation Commission (Commission). Dr. Redko requested reimbursement for services provided to a Claimant from August 16, 2002, through January 2, 2003. The IRO determined that the services were not medically necessary. Based on the IRO decision, the Commission’s Medical Review Division denied reimbursement for the disputed treatments. Dr. Redko appealed the decision to the State Office of Administrative Hearings (SOAH). This decision finds that most of the services Dr. Redko provided to Claimant were medically necessary and requires Transportation Insurance Company (Carrier) to reimburse Dr. Redko. However, the ALJ also finds that the charges for refilling an intrathecal pump on October 8, 2002, x-rays, and a fluoroscopic needle localization should not be reimbursed. Therefore, the ALJ recommends reimbursement in the total amount of $4,903.80.

I. JURISDICTION AND VENUE

No party challenged jurisdiction or venue. Therefore, those matters are addressed in the findings of fact and conclusions of law without further discussion.

II. STATEMENT OF THE CASE

The hearing in this docket was convened on September 2, 2004, at SOAH facilities in Austin, Texas. The hearing did not conclude that day, and reconvened twice on November 18, 2004, and January 13, 2005. Administrative Law Judge (ALJ) Wendy K. L. Harvel presided. Transportation Insurance Company (Respondent) was represented by Jane Stone, Attorney. Dr. Redko was represented by Neal Paster, attorney. The record closed on February 18, 2005, after the parties submitted post-hearing briefs.

The record developed at the hearing revealed that, on ___, Claimant suffered a compensable injury to her right foot. She subsequently underwent two surgeries on her right ankle. She was diagnosed with reflex sympathetic dystrophy (RSD) in 1993. Claimant has been a patient of Dr. Redko’s since June 1994.

On November 17, 1997, a SynchroMed the physician who refills the pump with medications. The issues in this case specifically involve the medical necessity for: (1) removal and reimplantation of the intrathecal pump and catheter on August 21, 2002, and September 25, 2002, following a pump failure; (2) refilling and maintaining the pump on August 16, October 8, November 5, 2002, and January 2, 2003; (3) hospital discharge maintenance on September 26, 2002; (4) office visits on September 20, November 5, and December 11, 2002, and (5) x-rays and spinal tap on December 18, 2002. The total amount in dispute is $5,141.80.

Following the initial denial, Petitioner appealed Carrier’s decision. The Commission referred the decision to an IRO. The IRO issued a decision on October 20, 2003, declaring its agreement with Carrier’s determination that the pump was medically unnecessary. Specifically, the IRO stated that there was no documentation indicating whether the pump was providing any relief, no documentation of any other medications the Claimant was taking, no documentation of functional improvement, and poor physical examination findings.^[1] Furthermore, the IRO indicated that the medications being used in the pump are not FDA-approved for intrathecal administration. With

respect to the services provided on December 18, 2002, the IRO indicated that although the medical records indicate that the Claimant had a diagnostic spinal tap, she did not have one. Finally, with respect to the x-rays on December 18, 2002, the IRO found them not to be medically necessary because there was no question raised as to the integrity of Claimant’s spine. Dr. Redko appealed the IRO’s decision to SOAH.

III. THE PARTIES’ EVIDENCE AND ARGUMENTS

A. Dr. Redko

Dr. Redko argues that the pump is medically necessary for his patient because without the pump, the Claimant would not be able to continue her activities of daily living. He contends that when the pump worked properly, Claimant was able to clean her house, cook, and take care of her family and her dogs. He asserts that the Claimant became further disabled when the pump malfunctioned, and that as a result of the malfunction, she was unable to clean house, work on her farm, or play with her dogs. Thus, he argues that the pump is medically necessary to keep her functioning at as high a level as possible. He admits that Claimant will never be cured of RSD, but he contends that the pump keeps her as comfortable as possible.

B. Carrier

Carrier argues that the treatments at issue in this case were medically unnecessary as demonstrated by the documented medical record.^[2] Carrier asserts that there is no evidence of a decrease in Claimant’s reliance on oral pain medications as a result of the pump, also, no documented increase in functional gain, or documented increase in the activities of daily living. Furthermore, Carrier contends that the dosage of medication going into the pump has continued to increase with no signs of pain relief.

Carrier further argues that the use of the pump with high doses of narcotic analgesics is dangerous and can cause side effects such as respiratory depression, constipation, confusion, severe itching, and others. Carrier points to the contradictory testimony of Dr. Redko and Claimant to argue that there is no medical necessity.

IV. ANALYSIS

The ALJ finds that the intrathecal pump is medically necessary to treat the Claimant’s pain that results from her compensable injury. Thus, the ALJ concludes that the procedures necessary to refill and maintain the pump are medically necessary as well. The ALJ further finds that Dr. Redko failed to demonstrate that the x-rays and fluoroscopic needle localization were medically necessary. Finally, the ALJ finds that Carrier cannot claim improper coding for the spinal tap when the initial reason for denial was a lack of medical necessity.

A. Removal and Reimplantation of Pump

When the Claimant’s pump failed, Dr. Redko removed the pump and reimplanted it so that it would function properly. Carrier contends that since the use of the pump was not medically necessary, it should not have been reimplanted. Dr. Redko asserts that the Claimant is unable to function without the pump.

The ALJ finds that the removal and reimplantation of the pump were medically necessary. Although it does appear that the Claimant needs increasing amounts of medication to control her pain, this fact alone does not indicate that the pump is medically unnecessary. Rather, as Dr. Redko testified, RSD is a disease without a cure. The pump only treats the symptoms. Dr. Redko and Claimant credibly testified that she is able to function at a higher level when the pump is working. Although Carrier claims that the medical records indicate that Claimant’s pain level has not improved, the Carrier could not controvert Dr. Redko’s and Claimant’s testimony that Claimant is able to function at a higher level with the pump working properly. Dr. Redko’s and Claimant’s testimony regarding her functioning is uncontroverted. An injured worker is entitled to any health

care that cures or relieves the effects naturally resulting from a compensable injury.^[3] The pump, according to Dr. Redko and Claimant, relieves the effects of pain caused by the compensable injury. Therefore, the ALJ concludes that the removal and reimplantation of the intrathecal pump were medically necessary and the Carrier shall reimburse Dr. Redko for those procedures.

B. Refilling and Maintenance of Pump

The Crrier argues that because the pump is not medically necessary, refilling and maintaining it are also unnecessary. Carrier denied reimbursement because of medical necessity on all dates of service, except October 8, 2002. The October 8, 2002 procedure was denied as not documented.^[4] Dr. Redko did not offer any testimony regarding the lack of documentation for this date of service. The notes from October 8, 2002, do not show that the pump was refilled, rather they show that Claimant was Adoing well post-op and indicated the need for a pump refill in two weeks.^[5] There is also a receipt showing the pump status on October 8, 2002, but no indication the pump was refilled on that date.^[6] Because there is no documentation of refilling and maintaining the pump on October 8, 2002, the ALJ finds that $134.00 in requested reimbursement for that date should be denied.

For the remaining dates of service where the Carrier denied refilling the pump as medically unnecessary, the ALJ finds that the pump is medically necessary. Thus, the ALJ concludes that refilling it and maintaining its function is medically necessary as well. Therefore, Carrier shall reimburse Dr. Redko for refilling and maintaining the pump on August 16, 2002, and November 5, 2002.

C. Hospital Discharge Management

On September 26, 2002, Dr. Redko charged for hospital discharge management for discharging the Claimant from the hospital after the pump was removed and reimplanted. Carrier denied this claim based on medical necessity. As discussed above, the ALJ finds that the removal and reimplantation of the pump was medically necessary. Therefore, the charge for discharging the Claimant from the hospital following that procedure was also medically necessary and shall be reimbursed.

D. Office Visits

Carrier denied Dr. Redko’s charges for office visits on September 20, November 5, and December 11, 2002. Carrier denied the office visits as not medically necessary for the same reasons attributed to the denial of the pump. In other words, because the pump was not medically necessary, the office visits were not medically necessary. For the same reasons the ALJ has found that the pump is medically necessary, the ALJ finds that the office visits were medically necessary.

E. X-rays, Spinal Tap, Fluoroscopic Needle Localization, and Dye Study

In its closing argument, Carrier contends that the costs for x-rays, a spinal tap, and a dye study should not be reimbursed. Carrier claims the x-rays were not medically necessary because there was no evidence that the Claimant’s spine was damaged. Dr. Redko did not demonstrate how the spinal x-rays were medically necessary. Therefore, the ALJ finds that Dr. Redko failed to meet his burden of proof to show that the x-rays taken on December 18, 2002, were medically necessary. Accordingly, the ALJ finds that the Carrier is not responsible for reimbursement of $82.00 for x-rays.

Carrier asserts that Dr. Redko did not perform a spinal tap because spinal fluid can be drawn from a port on the side of the pump, and that he is not entitled for reimbursement for a spinal tap because he did not perform one. Carrier did not deny reimbursement for improper coding, nor did the Carrier deny payment for a spinal tap because a spinal tap was not performed. Rather, Carrier

denied payment because of a lack of medical necessity.^[7] An insurer may not assert a reason for denying a claim that was not asserted to the health care provider prior to the filing of a request for medical dispute resolution.^[8] Furthermore, if Carrier had denied the spinal tap for improper coding, that issue would have gone through the medical fee dispute provisions and not through an IRO. In this case, the ALJ is limited to the grounds of appeal to the IRO. The IRO made a determination on medical necessity. Carrier cannot now argue improper coding. Therefore, the ALJ finds that Carrier shall reimburse Dr. Redko for the spinal tap billed on December 18, 2002.

Carrier argues that there was no medical necessity for the fluoroscopic needle localization of the side port of the pump because the port can be located with manual palpation. Dr. Redko provided no evidence of the medical necessity of the fluoroscopic needle localization. Therefore, the ALJ finds that the fluoroscopic needle localization was not medically necessary, and Carrier is not required to reimburse for that procedure performed on December 18, 2002.

Finally, Carrier asserts that the dye study was unnecessary because there was no documentation that the pump system was providing any clinical benefit for the Claimant’s condition. Carrier also asserts that there was no evidence the pump was leaking and therefore, a dye study was not medically necessary. However, Carrier’s witness, Dr. Neal Blauzvern complained at other times that Dr. Redko did not perform a dye study to determine whether the pump was leaking prior to performing surgery.^[9] Carrier cannot have it both ways. The ALJ finds that it was medically necessary to perform a dye study to determine whether there was a leak in the pump. Therefore, Carrier shall reimburse Dr. Redko for the dye study performed on December 18, 2002.

V. CONCLUSION

The ALJ finds that, under the record provided in this case, the intrathecal pump is medically necessary and Dr. Redko should be reimbursed for the removal, reimplantation, refilling, and maintaining of the pump as well as for office visits.

VI. FINDINGS OF FACT

1. On ___, a workers’ compensation claimant (Claimant) suffered an injury to her right foot that subsequently caused her to develop reflex sympathetic dystrophy (RSD), which constituted a compensable injury under the Texas Worker’s Compensation Act. Tex. Lab. Code Ann. ch. 401 et seq.
2. On November 17, 1997, Claimant received an intrathecal morphine pump implantation.
3. The pump remains implanted in Claimant.
4. Vladimir Redko, M.D., Claimant’s treating physician, removed the pump subsequent to two malfunctions, and reimplanted it both times. He also refilled and maintained the pump, saw Claimant during office visits, performed hospital discharge maintenance, and performed x-rays, a spinal tap, and a dye study.
5. Dr. Redko requested reimbursement for those procedures from Transportation Insurance Company (Carrier), the workers’ compensation insurance carrier for Claimant’s employer.
6. Carrier denied reimbursement as not medically necessary for all procedures on all dates of service except the October 18, 2002 refilling of the pump, which the Carrier denied as not documented.
7. Following the initial denial, Dr. Redko appealed Carrier’s decision to the Texas Workers’ Compensation Commission (Commission).
8. The Commission referred the dispute to an Independent Review Organization (IRO).
9. The IRO issued a decision on October 20, 2003, agreeing with the Carrier’s determination that the pump was medically unnecessary.
10. Petitioner requested in timely manner a hearing with the State Office of Administrative Hearings, seeking review and reversal of the IRO decision.
11. The Commission mailed notice of the hearing’s setting to the parties at their addresses on December 2, 2003.
12. A hearing in this matter was convened on September 2, 2004, was reconvened on November 18, 2005, and January 13, 2005, in Austin, Texas. The record closed on February 18, 2005, after the parties submitted post-hearing briefs.
13. When the pump is working properly, Claimant is able to function to the extent that she is able to clean her house, and perform other activities of daily living.
14. When the pump is not working properly, Claimant is unable to perform any activities of daily living.
15. The pump relieves the effects naturally resulting from the compensable injury.
16. The pump is medically necessary.
17. The surgery to repair and reimplant the pump was medically necessary.
18. Refilling and maintaining the pump is medically necessary.
19. Hospital discharge management was medically necessary.
20. Office visits for Claimant are medically necessary.
21. Claimant does not have any injury or indication of injury to her spine.
22. X-rays of the Claimant’s spine performed on December 18, 2002, were not medically necessary.
23. The October 18, 2002 pump refill was not adequately documented.
24. Fluoroscopic needle localization is not medically necessary when the side port can be located with manual palpation.
25. A dye study to determine whether the pump was leaking was medically necessary.

VII. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code § 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 § 413.031(k) and Tex. Gov’t Code ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code ch. 2001 and the Commission’s rules, 28 Tex. Admin. Code § 133.305(g) and §§ 148.001-148.028.
4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code §§2001.051 and 2001.052.
5. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 Tex. Admin. Code § 148.21(h).
6. Based on the Findings of Fact, repairing, maintaining, and refilling the intrathecal morphine pump, performing a dye study, making office visits, and performing hospital discharge management, are medically necessary in that they relieve the effects naturally resulting from a compensable injury, as contemplated by Tex. Lab. Code § 408.021(a).
7. Documentation for the October 18, 2002 charge for refilling and maintaining the pump was insufficient to support reimbursement.
8. Based on the Findings of Fact, the x-rays and fluoroscopic needle localization were not medically necessary because they did not serve to relieve the effects naturally resulting from a compensable injury, as required by Tex. Lab. Code § 408.021(a).
9. Based on the Findings of Fact and Conclusions of Law, the Findings and Decision of the Medical Review Division with respect to the medical necessity of repairing, maintaining, and refilling the intrathecal morphine pump, performing a dye study, making office visits, and performing hospital discharge management are overturned. The medical necessity decisions with respect to the x-rays, and fluoroscopic needle localization are upheld.

ORDER

IT IS THEREFORE, ORDERED that Transportation Insurance Company shall reimburse Dr. Vladimir Redko in the amount of $4,903.80.

Signed April 13, 2005.

WENDY K . L. HARVEL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Resp. Ex. 4, at 216.↑
2. Carrier denied the majority of the claims based on lack of medical necessity, not insufficient documentation.↑
3. Tex. Labor Code ‘ 408.021(a).↑
4. Pet. Ex. 7, at 16.↑
5. Resp. Ex. 4, at 201.↑
6. Resp. Ex. 4, at 202.↑
7. Pet. Ex. 7, at 12.↑
8. See, e.g., SOAH Docket Nos. 453-01-1958.M5, 453-01-0309.M5, and 453-00-1570.M5.↑
9. Tr., at 177-178.↑