DECISION AND ORDER

This case is an appeal by Marvin L. Faulkner, D.O., (“Petitioner”) from action by the Medical Review Division (“MRD”) of the Texas Workers’ Compensation Commission (“Commission”) in a preauthorization dispute. The MRD found that Petitioner’s request for preauthorization of medical services should be dismissed on the basis of Petitioner’s failure to comply with the Commission rule at 28 TEX. ADMIN. CODE (“TAC”) § 133.308 B which requires a “request for prospective necessity dispute” to be filed within 45 days after an insurer refuses to reconsider its denial of preauthorization for the specific services in dispute.

This decision supports the validity of the MRD’s action, finding that the request for preauthorization should be dismissed.

I. JURISDICTION AND VENUE

The Commission has jurisdiction over this matter pursuant to § 413.031 of the Texas Workers’ Compensation Act (“the Act”), TEX. LABOR CODE ANN. ch. 401 et seq. The State Office of Administrative Hearings (“SOAH”) has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to § 413.031(k) of the Act and TEX. GOV’T CODE ANN. ch. 2003. No party challenged jurisdiction or venue.

II. STATEMENT OF THE CASE

The hearing in this docket was convened on July 19, 2004, at SOAH facilities in the William P. Clements Building, 300 W. 15^th St., Austin, Texas. Administrative Law Judge (“ALJ”) Mike Rogan presided. Petitioner appeared by telephone, representing himself. Travelers Indemnity Company of Connecticut (“Respondent”) was represented by Daniel J. Flanagan. Both parties presented evidence and argument. The hearing was adjourned and the record closed on the same date.^[1]

The record revealed that on ___, a claimant suffered a compensable injury to her back and subsequently sought treatment from Petitioner. Petitioner found that the patient suffered persistent pain from ligament disruption in the lower back. Injections into vertebral facet capsules provided short-term relief, but for a more long-term solution, Petitioner sought preauthorization to perform a bilateral rhizotomy B cauterization of spinal nerve roots B at the L3-4 level, with fluoroscopy and sedation.

Respondent, the insurer for the claimant’s former employer, denied preauthorization in a letter dated July 2, 2001, stating that a physician advisor for the company had “determined that the proposed treatment does not meet medical necessity guidelines.” Petitioner asked Respondent to reconsider its initial decision. In a letter dated August 28, 2001, Respondent reiterated its initial denial, expanding slightly upon its previous rationale for decision. In this second letter, Respondent asserted, “A home exercise program has been shown to be more effective than passive treatment in that it increases muscle strength, stamina, stability and provides for the release of the [body’s] own pain killers . . .”

About 31 and a half months later, Petitioner filed with the Commission a “Medical Dispute Resolution Request” form pertaining to the disputed rhizotomy. The Commission’s MRD reviewed the matter and issued an order^[2] on May 14, 2004, dismissing the case upon the following basis:

Per Commission Rule 133.308(e)(2), A request for prospective necessity dispute resolution shall be considered timely if it is filed with the division no later than the 45^th day after the date the carrier denied approval of the party’s request for reconsideration of denial of health care that requires preauthorization . . .

The date of the reconsideration denial by the insurance carrier is 8/28/01; and the Medical Dispute Resolution request was received by the [Commission] on 4/15/04.

Requests for medical dispute resolution shall be made in the form, format, and manner prescribed by the Commission. Per Commission Rule 133.308(i), the Commission determines that good cause exists to Dismiss the request.

Petitioner then made a timely request for review of the MRD action before SOAH.

III. THE PARTIES’ EVIDENCE AND ARGUMENTS

A. Petitioner

At the hearing, Petitioner provided testimony to support the technical efficacy and necessity of the disputed medical procedure, but he did not address any issues clearly related the to regulatory basis for the MRD’s action in this case.

B. Respondent

Respondent argues that its second letter rejecting preauthorization on August 28, 2001, constituted the denial of “the party’s request for reconsideration of denial of health care that requires preauthorization,” as described in 28 TAC § 133.308(e)(2). This second denial thus defined the beginning of the 45-day period in which Petitioner was required to file a request for medical dispute resolution, if he wished to contest Respondent’s decision. Obviously, Petitioner did not file such a request with the Commission until long after the end of that 45-day period.

IV. ANALYSIS

Petitioner bears the burden of proving that the factual basis or analytical rationale for the MRD’s action in this case was invalid. In the ALJ’s view, he has not discharged that burden.

This dispute is governed primarily by 28 TAC § 133.308. Subsection (a) of that rule states, “This rule applies to the independent review of prospective or retrospective medical necessity disputes . . . for which the dispute resolution request was filed on or after January 1, 2003.” In this case, the request was filed on April 15, 2004.

The rule also contains the following provisions:

(d) A request for independent review of a medical necessity dispute shall be timely filed by the requestor with the [Medical Review Division].

(e) A person or entity who fails to timely file a request waives the right to independent review or medical dispute resolution. The Commission shall deem a request to be filed on the date the division receives the request and timeliness shall be determined as follows:

(2) A request for prospective necessity dispute resolution shall be considered timely if it is filed with the division no later than 45 days after the date the carrier denied approval of the party’s request for reconsideration of denial of health care that requires preauthorization . . .

Neither the MRD nor any of the parties to this dispute have raised any question as to whether

Respondent’s second letter (dated August 28, 2001), which repeated the insurer’s denial of preauthorization in this case, constituted the denial of a “request for reconsideration,” as described in 28 TAC § 133.308(e)(2). That rule identifies such a denial as the initial point for the 45-day period in which a party must submit a request for prospective necessity dispute resolution. Moreover, the ALJ can find nothing in the applicable rules or statutes to suggest that the form, content, or other aspects of the decision conveyed by the August 28 letter are inconsistent with a proper denial of reconsideration. The letter clearly reflects, on the part of Respondent, a second round of evaluating Petitioner’s request for preauthorization. The ALJ thus concludes, as did the MRD, that the insurer’s denial of reconsideration in this case occurred on August 28, 2001, and that Commission rules accorded Petitioner 45 days from that date B about one and a half months B to submit a timely request for medical dispute resolution.

Petitioner, of course, missed this regulatory deadline by some 30 months and has offered no explanation for such late filing. The rule establishing the deadline uses clearly mandatory language with respect to its observance. According to 28 TAC § 133.308(d), a request for dispute resolution “shall be” timely filed. Under 28 TAC § 133.308(e), a person who fails to make a timely filing “waives the right” to dispute resolution. The ALJ thus concludes that he is bound to apply these mandatory provisions, absent the showing of some basis within the relevant regulatory scheme for recognizing exceptions to their application.

V. CONCLUSION

The ALJ finds that, under the record provided in this case, Petitioner has not demonstrated his satisfaction of basic procedural prerequisites for seeking preauthorization of the medical services at issue. His effort to obtain preauthorization for these services should be denied, accordingly, consistent with the MRD’s prior dismissal of his request for medical dispute resolution in this case.

VI. FINDINGS OF FACT

1. On ___, a claimant suffered an injury to her back that was a compensable injury under the Texas Worker’s Compensation Act (“the Act”), TEX. LABOR CODE ANN. § 401.001et seq.
2. The claimant subsequently sought treatment from Marvin L. Faulkner, D.O. (“Petitioner”), who found that the claimant suffered persistent pain from ligament disruption in the lower back and that injections into vertebral facet capsules provided short-term relief.
3. In an effort to provide more long-term pain relief, Petitioner sought preauthorization from Travelers Indemnity Company of Connecticut (“Respondent”), the insurer for the claimant’s former employer, to perform upon the claimant a bilateral rhizotomy B cauterization of spinal nerve roots B at the L3-4 level, with fluoroscopy and sedation.
4. The Respondent denied the requested preauthorization in a letter dated July 2, 2001, stating that a physician advisor for the company had “determined that the proposed treatment does not meet medical necessity guidelines.” Petitioner asked Respondent to reconsider its initial decision. In a letter dated August 28, 2001, Respondent reiterated its initial denial.
5. On April 15, 2004, the Medical Review Division (“MRD”) of the Texas Workers’ Compensation Commission (“Commission”) received from Petitioner a request for medical dispute resolution with respect to the request for preauthorization noted in Findings of Fact Nos. 3 and 4.
6. The Commission’s MRD issued an order (in dispute resolution docket No. M2-04-1249-01) on May 14, 2004, concluding that the Petitioner’s case should be dismissed on the basis of Petitioner’s failure to make a timely and proper filing of request for medical dispute resolution, in accordance with 28 TEX. ADMIN CODE (“TAC”) ‘ 133.308.
7. Petitioner requested in timely manner a hearing with the State Office of Administrative Hearings (“SOAH”), seeking review and reversal of the MRD action regarding preauthorization.
8. The Commission mailed notice of the hearing’s setting to the parties at their addresses on June 22, 2004.
9. A hearing in this matter was convened before SOAH on July 19, 2004. Petitioner appeared telephonically. Respondent appeared and was represented by counsel. The record in the case closed on July 19, 2004.

VII. CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission has jurisdiction related to this matter pursuant to § 413.031 of the Act.
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 § 413.031(k) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TAC § 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 ANN. §§ 2001.051 and 2001.052.
5. Petitioner, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC ‘ 148.21(h).
6. The proposed medical services noted in Finding of Fact No. 3 required preauthorization under 28 TAC § 134.600.
7. Based upon the foregoing Findings of Fact, Petitioner, in seeking preauthorization for the medical services noted in Finding of Fact No. 3, failed to comply with 28 TAC 133.308(e)(2), which requires a party to file a request for prospective necessity dispute resolution with the MRD no later than 45 days after the date that the insurance carrier denied approval of the party’s request for reconsideration of denial of specific health care that requires preauthorization. Petitioner accordingly waived the right to medical dispute resolution with respect to those disputed services.
8. Based upon the foregoing Findings of Fact and Conclusions of Law, the prior findings and action in this matter by the MRD, as reflected in its order issued on May 14, 2004, were correct; Petitioner’s effort to obtain preauthorization for services noted in Finding of Fact No. 3 should be denied.

ORDER

IT IS THEREFORE, ORDERED that the appeal of Marvin L. Faulkner, D.O., Petitioner, be denied, in accordance with the findings and action of the Medical Review Division in this matter, reflected in an order of May 14, 2004, which concluded that Petitioner had failed to comply with 28 TAC 133.308(e)(2) and that Petitioner’s request for prospective necessity dispute resolution should therefore be dismissed.

Signed July 26, 2004.

MIKE ROGAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. The staff of the Commission formally elected not to participate in this proceeding, although it filed a general “Statement of Matters Asserted” with the notice of the hearing.↑
2. Under 28 TAC ‘ 133.308(i), governing action by the MRD, AA dismissal does not constitute a decision. The commission may dismiss a request for medical necessity dispute resolution if . . . (5) the request for dispute resolution is untimely . . . or . . . (8) the commission determines that good cause exists to dismiss the request.↑