DECISION AND ORDER

___ (Petitioner) requested a hearing following an adverse determination by the Texas Workers’ Compensation Commission (Commission), Medical Review Division (MRD) denying the preauthorization request of Petitioner to undergo a right knee arthroscopic chondroplasty. The basis of the denial was that the MRD determined that there was no evidence the Petitioner sought or obtained preauthorization, consequently, the MRD dismissed the request. This decision grants the relief sought by Petitioner and orders reimbursement.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY.

A hearing convened on February 18, 2004, before Administrative Law Judge (ALJ) Stephen J. Pacey. Petitioner appeared pro se, but was assisted by Luz Loza, an Ombudsman. No representative of Hartford Insurance Company of the Midwest (Respondent) was present at the hearing.

A. Notice

As Respondent was not present at the hearing, notice was not disputed, but had to be proved. The Ombudsman indicated that, according to Commission’s standard procedure, Respondent’s notice of hearing was placed in Respondent’s Commission box (37). At the initial setting of this case, and in order to ensure Respondent did receive proper notice, ALJ Ramos continued the case and sent the new date, place, and time to Respondent at its street address. Consequently, Respondent was sent notice of hearing according to both Commission procedure and by SOAH. Respondent received proper notice in this case.

B. Jurisdiction.

The MRD dismissed the case on the basis that the Petitioner did not submit insurance carrier denials for the requested right knee surgery. MRD’s decision is not binding on SOAH, especially considering that the evidence reveals Petitioner received two denials from Respondent.

The ALJ believes SOAH has jurisdiction to hear a dismissal appeal. SOAH’s grant of jurisdiction is in the Labor Code, which says that “a party to a medical dispute that remains unresolved after a review of the medical service under this section is entitled to a [SOAH] hearing.”

Tex. Lab. Code § 413.031(k). There is no exception for dismissals.

Furthermore, the Commission’s rules provide no recourse for a party aggrieved by a dismissal, yet at the same time give the MRD sweeping power to dismiss requests for dispute resolution. The MRD may dismiss a request for any of several listed reasons, but also upon determining “that good cause exists to dismiss the request.” 28 Tex. Admin. Code § 133.305(m). The ALJ also notes that the basis for the MRD’s dismissal relates to the apparent quality of Petitioner’s compliance with the Commission’s requirements for documentation in medical review disputes.

II. DISCUSSION

Petitioner sustained a work-related injury on or about ___. Petitioner injured her right knee when she fell at ___. On April 10, 2003, an MRI revealed a partial thickness cartilage defect of the medial facet of the patellar cartilage. Petitioner was diagnosed with Chondromalacia patella,^[1] and Bernard M. Seger, M.D. recommended arthroscopic surgery. On May 5, 2003, and on July 23, 2003, Respondent denied Petitioner’s preauthorization request on the basis that the surgical procedure did not appear to be medically necessary.^[2] On October 3, 2003, Petitioner appealed MRD’s September 18, 2003, denial of preauthorization.

III. EVIDENCE AND DECISION.

As Respondent did not appear in the case or file any documents, the only evidence is that presented by the Petitioner. Petitioner’s documents are not controverted. On February 2, 2004, Thomas M. Raymond, M.D., Commission’s designated doctor, reported that Petitioner was not at MMI. Dr. Raymond reported that surgery would help her right knee. Dr. Raymond’s report also noted if Bernard M. Seger, M.D., determined that surgery is needed then Petitioner should be at MMI in approximately six months subsequent to that surgery. On both August 25, 2003, and January 26, 2004, Dr. Seger determined that arthroscopic surgery was medically necessary to repair Petitioner’s injured right knee.

The reports of Dr. Seger and Dr. Raymond prove by a preponderance of the evidence that arthroscopic surgery on the right knee is medically necessary, and consequently, the ALJ holds that preauthorization should be granted

IV. FINDINGS OF FACT

1. ___ (Claimant), sustained a work-related injury on or about ___.
2. Claimant suffered injuries to her right knee.
3. Claimant was diagnosed with Chondromalacia patella.
4. An April 10, 2003, MRI revealed a partial thickness cartilage defect of the medial facet of the patellar cartilage.
5. Dr. Seger’s reports concluded that Claimant’s knee required arthroscopic surgery.
6. Dr. Raymond, Commission’s designated, doctor concluded that surgery to Claimant’s right knee was medically necessary for her to reach MMI.
7. Hartford Insurance Company of the Midwest (Respondent) did not appear at the hearing and did not present any evidence.
8. Claimant’s doctors on two occasions in 2003 requested preauthorization to perform arthroscopic surgery to repair her Chondromalacia patella.
9. In 2003, Respondent on two occasions denied Claimant’s requests for preauthorization.
10. In September, 2003, Claimant requested dispute resolution before the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission). Claimant’s request stated that Respondent denied her preauthorization for a surgical procedure on the basis that the surgery was not medically necessary.
11. The MRD dismissed the claims, on the grounds that Claimant did not submit insurance carrier denials for the requested right knee surgery.
12. Claimant filed a request for hearing before SOAH.
13. Respondent was sent notice of hearing according to both Commission procedure and by SOAH.
14. The notice contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
15. The hearing convened on February 18, 2004, before Administrative Law Judge (ALJ) Stephen J. Pacey. Petitioner appeared pro se, but was assisted by Luz Loza an Ombudsman. No representative of the Hartford Insurance Company of the Midwest (Respondent) was present at the hearing. The hearing was adjourned and the record closed the same day.
16. Arthroscopic surgery is medically necessary to repair Claimant’s right knee and preauthorization for the surgery should have been granted.

V. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code ch. 401 et seq.
2. SOAH has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code § 413.031; Tex. Gov’t Code ch. 2003.
3. An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. Tex. Lab. Code § 408.021.
4. Adequate and timely notice of the hearing was provided in accordance with the Administrative Procedure Act. Tex. Gov’t Code § 2001.052.
5. The requested arthroscopic surgery is appropriate for the Claimant’s injury. Tex. Lab. Code Ann. § 408.021.
6. Respondent should cover the costs of the surgery.

ORDER

IT IS THEREFORE ORDERED that Hartford Insurance Company of the Midwest reimburse the reasonable and necessary the costs of the approved arthroscopic surgery to be provided to the Claimant.

Signed March 18, 2004.

STEPHEN J. PACEY
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. Dorland’s Illustrated Medical Dictionary (28^th edition, 1994) defines Chondromalacia as the softening of the articular cartilage, most frequently in the patella.↑
2. The July 23, 2003, denial noted that there was no MRI scan. This was incorrect because an MRI of the knee was performed on April 10, 2003.↑