DECISION AND ORDER

The subject of this decision and order is a motion to dismiss brought by the Zurich American Insurance Company (Carrier). In its motion, Carrier contended that this case should be dismissed from the docket of the State Office of Administrative Hearings (SOAH) because Petitioner, ___, filed a late appeal under the rules of the Texas Workers’ Compensation Commission. The Administrative Law Judge (ALJ) agrees that Petitioner’s late-filed appeal failed to invoke the Commission’s jurisdiction to consider his appeal. Accordingly, this matter should be dismissed from the SOAH docket.

I. PROCEDURAL HISTORY

On October 27, 2003, the Carrier filed a motion to dismiss/motion for summary disposition based on Petitioner’s untimely appeal. The ALJ continued the hearing and issued an order explaining the status of the case and giving Petitioner an opportunity to contest the timeliness issue. To date, Petitioner has not filed a response to the Carrier’s motion or the ALJ’s order.

The Carrier’s proof is the order dismissing the appeal by the Medical Review Division of the Texas Workers’ Compensation Commission. The ALJ takes official notice of the facts recited in the order, which Petitioner has failed to contest.

II. REASONS FOR DECISION

Petitioner’s case is a request for preauthorization for a CT/myleogram of the lumbar spine. The applicable Commission Rule requires that disputes over such requests be filed no later than the 45^th day after the date the Carrier denied approval of the party’s request for reconsideration of a denial of preauthorization.^[1]

Here, the Carrier denied reconsideration of the Petitioner’s request on May 9, 2003. Petitioner’s request for a review of that denial was received by the Commission on August 6, 2003. Therefore, the Commission dismissed the appeal as untimely in an order dated August 20, 2003.

The ALJ agrees with the Commission that the appeal was untimely. In conducting hearings for the Commission, SOAH must consider the applicable substantive rules of the Commission.^[2] The time limits established by the workers’ compensation laws for appealing administrative decisions are mandatory.^[3]

III.FINDINGS OF FACT

1. L.W. (Petitioner) requested preauthorization for a CT/myleogram of the lumbar spine by the Carrier, Zurich American Insurance Company.
2. The Carrier denied reconsideration of the Petitioner’s request on May 9, 2003.
3. Petitioner’s request for dispute resolution of that denial was received by the Texas Workers’ Compensation Commission on August 6, 2003.
4. The Commission dismissed the appeal as untimely in an order dated August 20, 2003.
5. Based on Findings 2 and 3, Petitioner’s appeal was filed with the Commission more than 45 days after the date the Carrier denied approval of the party’s request for reconsideration of a denial of preauthorization.

IV. CONCLUSIONS OF LAW

1. The request referenced in Finding 3 was not timely. 28 Tex. Admin. Code ‘133.308(e).
2. In conducting hearings for the Commission, the State Office of Administrative Hearings (SOAH) must consider the applicable substantive rules of the Commission. Tex. Gov’t Code ‘ 2003.021(c).
3. The time limits established by the workers’ compensation laws for appealing administrative decisions are mandatory. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999).
4. Based on Conclusions 1 B 3, Petitioner failed to invoke the Commission’s jurisdiction to consider the dispute, and this matter should be dismissed from SOAH’s docket.

ORDER

IT IS, THEREFORE, ORDERED that this matter is dismissed from the docket of the State Office of Administrative Hearings.

Signed this 19th day of December, 2003.

____________________________________ BARBARA C. MARQUARDT
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. 28 Tex. Admin. Code ‘133.308(e).↑
2. Tex. Gov=t Code ‘ 2003.021(c).↑
3. Albertson=s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999).↑