DECISION AND ORDER

The subject of this decision and order is a motion to dismiss brought by Respondent Church Mutual Insurance Company (the Carrier). In its motion, the Carrier contends that this case should be dismissed from the docket of the State Office of Administrative Hearings (SOAH) because Petitioner failed to timely file a request for hearing with the Texas Workers’ Compensation Commission (the Commission). In this decision, the Administrative Law Judge (ALJ) finds that Petitioner did not timely file a request for hearing, and therefore, SOAH lacks jurisdiction of this case. The matter is hereby dismissed from the SOAH docket.

I. STATEMENT OF THE CASE

The Carrier filed and served its motion to dismiss on September 20, 2002. Petitioner, Quantum Physical Therapy, did not file a response to the motion, and the time for filing a response, as provided in SOAH’s Rule of Practice and Procedure 155.29(d), has expired. 1 TEX. ADMIN. CODE §155.29(d).

II. ANALYSIS

A person requesting a hearing must file a written request with the Commission’s Chief Clerk of Proceedings, Hearings Division, not later than 20 days after receipt of the findings and decision of the Commission’s Medical Review Division (MRD). 28 TEX. ADMIN. CODE §148.3(a). The Commission mailed the MRD’s findings and decision to Petitioner on July 2, 2002. (Ex. B to the Carrier’s motion.) Pursuant to 28 TEX. ADMIN. CODE §102.5(d), the decision was deemed received by Petitioner five days after mailing. Five days from the date of mailing was Sunday, July 7, 2002. Pursuant to 28 TEX. ADMIN. CODE § 102.3(a)(3) and (b), if the last day of a time period is a Saturday, Sunday, or legal holiday, the presumed date of receipt carries over to the next working day. Thus, Petitioner’s presumed dated of receipt was July 8, 2002.^[1]

Unless otherwise specified in the Commission’s rules, in order to be timely filed, a document must be received by the Commission before the end of normal business hours on the last permissible day for filing. 28 TEX. ADMIN. CODE§102.3(e). Accordingly, Petitioner’s request for hearing had to be received by the Chief Clerk of Proceedings by the close of business on July 29, 2002, in order to be timely.

In correspondence to the Chief Clerk of Proceedings dated July 29, 2002, Petitioner requested “reconsideration of approval for payment” and submitted additional documentation regarding the services at issue in the MRD’s decision. (Ex. B to the Carrier’s motion.) According to the Commission’s date stamp, the Commission received Petitioner’s July 29, 2002, correspondence on August 8, 2002. (Ibid.) Thus, Petitioner’s correspondence was filed with the Commission nine days after the deadline for filing a request for hearing.

The Carrier argues that, besides being untimely, Petitioner’s correspondence requesting reconsideration did not constitute a request for hearing, as contemplated by Commission Rule 148.3(a). The Carrier notes that the MRD’s findings and decision instructed a party wishing to appeal decision to request a hearing in writing, attach a copy of the decision to its request, and deliver a copy of the request to all other parties, but Petitioner did none of these things. Because Petitioner did not respond to the Carrier’s motion, the ALJ has no evidence as to whether Petitioner intended its July 29, 2002, correspondence to constitute a request for hearing. In any event, because the correspondence was not timely, the ALJ need not reach that issue in this decision.

Because Petitioner failed to timely file a request for hearing, SOAH lacks jurisdiction of this matter, and this matter should be dismissed from SOAH’s docket.

III.FINDINGS OF FACT

1. On August 20, 2001, Petitioner requested medical dispute resolution at the Texas Workers’ Compensation Commission (the Commission) for consideration of the Carrier’s nonpayment of charges Petitioner billed for medical services. The amount in dispute was $7,168.00. The Medical Dispute Resolution (MDR) docket number assigned to that case was M5-02-0603-01.
2. On July 1, 2001, the Commission’s Medical Dispute Resolution Division (MRD) issued its Findings and Decision in MDR docket number M5-02-0603-01. The MRD’s Findings and Decision was mailed on July 2, 2002.
3. Petitioner is presumed to have received the MRD’s Findings and Decision on July 8, 2002.
4. By correspondence to the Commission dated July 29, 2002, Petitioner provided additional documentation to the Commission and requested that the Commission reconsider the MRD’s Findings and Decision.
5. The Commission received Petitioner’s July 29, 2002, correspondence on August 8, 2002.
6. Based on Findings of Fact Nos. 2-5, Petitioner’s failed to request a hearing within 20 days after Petitioner’s receipt of the MRD’s Findings and Decision.

IV. CONCLUSIONS OF LAW

1. A person requesting a hearing must file a written request for hearing with the Commission not later than 20 days after receipt of the official notice of adverse action from the Commission. 28 TEX. ADMIN. CODE §148.3(a).
2. Based on Findings of Fact Nos. 2-5, Petitioner failed to timely file a request for hearing to appeal the decision of the Commission’s MRD in MDR docket number M5-02-0603-01.
3. Petitioner’s failure to file a request for hearing within 20 days after receipt of the MRD’s Findings and Decision renders SOAH without jurisdiction to proceed to hearing.

ORDER

IT IS, THEREFORE, ORDERED that the Carrier’s motion to dismiss is granted; the hearing set for November 14, 2002, at 11:00 a.m., is canceled; and this matter is hereby dismissed and withdrawn from the docket of the State Office of Administrative Hearings.

Signed this 4^th day of November, 2002.

Renee M. Rusch
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. As Petitioner did not respond to the motion, Petitioner offered no evidence indicating it did not receive the MRD’s decision by the presumed date.↑