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At a Glance:
Title:
453-02-0210-m5
Date:
September 3, 2002
Status:
Retrospective Medical Necessity

453-02-0210-m5

September 3, 2002

FINAL ORDER

Cy-Fair Chiropractic Associates (Petitioner) appealed the Findings and Decision of the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) denying reimbursement for physical therapy and office visits. At the hearing held August 7, 2002, the following persons appeared: the Commission’s assistant general counsel Susan Goggan; attorney Janice Menzies for the Carrier; and Petitioner’s employees Topaz Lantz and Melissa Luckett for Petitioner. Based on the evidence presented, the Respondent’s joint motion to dismiss is granted, and the matter is dismissed from the docket of the State Office of Administrative Hearings (SOAH).

DISCUSSION OF THE LAW AND EVIDENCE

On July 31, 2001, the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) mailed its Findings and Decision denying reimbursement to Petitioner. On the last page of the MRD Findings and Decision, Petitioner was informed in a paragraph captioned with the bold print heading “YOUR RIGHT TO REQUEST A HEARING” of the following:

A.The Findings and Decision would be deemed received by Petitioner five days after the date of its mailing (which was August 5, 2001).

B.If it disagreed with the Findings and Decision and wished a hearing, Petitioner’s written request for hearing must be received by the Commission’s Chief Clerk within 20 days of Petitioner’s receipt of the decision.

Petitioner argued that because it mailed the request on August 24, 2001, it had timely appealed the MRD decision. The Respondents argued that the timeliness of the request is determined by the date the Commission received the request.

Pursuant to 28 TEX. ADMIN. CODE (TAC) §102.5(h), Petitioner is deemed to have received the MRD decision five days from its date of mailing, which was August 5, 2001. Petitioner did not present any evidence to rebut the presumption that it received the MRD decision on or before August 5, 2001. Pursuant to 28 TAC § 148.3, the appealing party’s written request for hearing must be received by the Commission’s Chief Clerk within twenty days after receipt of the MRD decision. The twentieth day after August 5, 2001, was August 25, 2001, (a Saturday) so Petitioner’s request had to be received by the Commission no later than the first business day after August 25, 2001, which was Monday, August 27, 2001. The Commission’s date stamp showed Petitioner’s written request for hearing was received by the Commission’s Chief Clerk on August 29, 2001.

The Respondents filed a motion to dismiss, arguing the request was not timely filed because it was not received by the Commission until August 29, 2001. Because the request for hearing was not received by the Commission on or before August 27, 2001, it was not timely. Therefore, the State Office of Administrative Hearings has no authority to hear the appeal, and it must be dismissed.

FINDINGS OF FACT

  1. On July 31, 2001, the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) mailed its Findings and Decision denying reimbursement to Cy-Fair Chiropractic Associates (Petitioner).
  2. On the last page of the MRD Findings and Decision, Petitioner was informed in a paragraph captioned with the bold print heading “YOUR RIGHT TO REQUEST A HEARING” of the following:
    1. The Findings and Decision would be deemed received by Petitioner five days from the date of its mailing (which was August 5, 2001).
    2. If Petitioner disagreed with the Findings and Decision and wished a hearing, the written request for hearing must be received by the Commission’s Chief Clerk within 20 days of Petitioner’s receipt of the decision (which was extended to Monday, August 27, 2001).
  3. The MRD Findings and Decision was received by Petitioner on August 5, 2001.
  4. To be timely, Petitioner’s written request for hearing had to be received by the Commission’s Chief Clerk on or before Monday, August 27, 2001.
  5. Petitioner’s written request for hearing was received by the Commission’s Chief Clerk on August 29, 2001.
  6. The Texas Workers’ Compensation Commission and Sentry Insurance Company filed a joint motion to dismiss Petitioner’s appeal based on lack of jurisdiction because its request for hearing was not timely received by the Commission’s Chief Clerk.

CONCLUSIONS OF LAW

  1. Cy-Fair Chiropractic Associates (Petitioner) was required to file its written request for hearing with the Commission not later than 20 days after receipt of the Findings and Decision. 28 TEX. ADMIN. CODE §148.3.
  2. The date referenced in Finding 3 is deemed established pursuant to 28 TEX. ADMIN. CODE §102.5(h).
  3. Petitioner failed to timely file a request for hearing to appeal the MRD decision referenced in Finding 1.
  4. Petitioner’s failure to timely file a request for hearing within 20 days after receipt of the MRD Findings and Decision renders SOAH without authority to rule on the merits of this appeal.

ORDER

IT IS, THEREFORE, ORDERED that the Texas Workers’ Compensation Commission’s and Sentry Insurance Company’s joint motion to dismiss is granted, and the appeal by Cy-Fair Chiropractic Associates is hereby dismissed from the docket of the State Office of Administrative Hearings.

Signed this 3rd day of September, 2002.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

End of Document
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