DECISION AND ORDER
Dynamic Performance Behavior Center (Petitioner) appealed the Findings and Decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) denying reimbursement for treatment provided to _________ (Claimant). Because Petitioner bore the burden of proof and failed to participate in the hearing, this decision finds the appeal should be dismissed.
REASONS FOR DECISION
The hearing in this case was set for 9 a.m. January 17, 2002. Administrative Law Judge Sharon Cloninger was present. In its Statement of Matters Asserted sent to Petitioner, Respondent, and the State Office of Administrative Hearings (SOAH) on January 8, 2002, the Commission had said it would not appear, and did not. By 9:15 a.m., neither Petitioner nor Respondent had appeared. The file contained no request from either party to appear by telephone. The ALJ attempted unsuccessfully to reach the parties by telephone.
The Rules of Practice and Procedure of the State Office of Administrative Hearings provide at 1 Tex. Admin. Code (TAC) §155.57(b)(4):
A contested case referred to the Office, or a portion of the case, is subject to dismissal from the Office's docket or a recommendation to the referring agency of dismissal for:
(4)failure of the moving party to prosecute the case in accordance with the requirement of statute, rule, or ALJ order;
. . . .
Petitioner bore the burden of proof in this proceeding pursuant to Tex. Lab. Code Ann. §413.031 and 28 TAC §148.21(h). As Petitioner failed to appear and prosecute its claim, the ALJ dismisses the appeal, and makes the following Findings of Fact based on Petitioner’s request to appeal the MRD decision, the Notice of Hearing, and Statement of Matters Asserted contained in the court’s file.
FINDINGS OF FACT
- On April 25, 2001, Dynamic Performance Behavior Center (Petitioner) appealed the Findings and Decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) decision M5-01-1367-01 issued April 11, 2001.
- By letter dated May 29, 2001, Petitioner was notified of a January 17, 2002, hearing on the appeal to be held at the State Office of Administrative Hearings, Stephen F. Austin Building, 1700 North Congress Avenue, Suite 1100, Austin, Texas.
- The Commission’s Statement of Matters Asserted was sent to Petitioner and Respondent by facsimile transmission on January 8, 2002.
- Neither Petitioner nor Respondent requested to appear at the hearing via telephone conference call.
5Neither Petitioner nor Respondent appeared at the hearing. The Commission waived its appearance.
CONCLUSIONS OF LAW
- The Texas Workers' Compensation Commission has jurisdiction over this matter pursuant to §413.031 of the Texas Workers' Compensation Act (the Act), Tex. Lab. Code Ann. ch. 401 et seq.
- 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 the Act §413.031 and Tex. Gov’t. Code Ann. ch. 2003.
- Petitioner bore the burden of proof in this proceeding pursuant to §413.031 of the Act and 28 Tex. Admin. Code (TAC) §148.21(h).
- Because Petitioner failed to appear and prosecute its claim, the appeal should be dismissed pursuant to 1 TAC § 155.57(b)(4).
IT IS, THEREFORE, ORDERED that the appeal of Dynamic Performance Behavior Center from the decision of the Texas Workers’ Compensation Commission’s Medical Review Decision is dismissed for want of prosecution.
Signed this 23rd day of January 2002.
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS