DECISION AND ORDER

___ (Claimant), challenged the decision of Old Republic Insurance Company (Carrier) denying preauthorization for a lumbar discogram with CT Scan. The Texas Workers’ Compensation Commission (the Commission) Medical Review Division (MRD) dismissed Claimant’s request for reconsideration because it was untimely filed. In this decision, the Administrative Law Judge (ALJ) finds that Claimant did not meet her burden of showing that the requested procedure should be preauthorized. Therefore, the ALJ upholds Carrier’s denial of the requested lumbar discogram.

The hearing convened and closed on December 18, 2003, before ALJ Steven M. Rivas. Clamant appeared and represented herself. Carrier appeared and was represented by Michael Portele, attorney.

I. DISCUSSION

A. Background Facts

Claimant sustained a compensable back injury on ___, while lifting tires. Subsequently, Claimant came under the care of several physicians who administered various types of treatment including physical therapy, steroid injections, and medication for her back pain. Claimant also underwent diagnostic testing that included MRI examinations to Claimant’s cervical, thoracic, and lumbar areas on various dates of service.

At some point, Son K. Nguyen, M.D., recommended Claimant undergo a lumbar discogram, and Carrier denied preauthorization as not medically necessary on June 18, 2003. Claimant’s request for reconsideration was subsequently denied by the Carrier on July 2, 2003. On September 5, 2003, the Commission’s MRD dismissed Claimant’s request because it was not filed within 45 days of the Carrier’s denial, and did not refer this dispute to an Independent Review Organization (IRO). Claimant appealed to the State Office of Administrative Hearings.

B. Applicable Law

Pursuant to the Texas Workers’ Compensation Act (“the Act”), TEX. Lab. Code Ann. § 408.021et seq., an employee who sustains a compensable injury is entitled to all health care that cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment.

Under Tex. Lab. Code Ann. § 401.011(19), health care includes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services.

Certain categories of health care identified by the Commission require preauthorization, which is dependant upon a prospective showing of medical necessity under § 413.014 of the Act and 28 Tex. Admin. Code (TAC) § 134.600. In this instance, under 28 TAC § 134.600(h)(7), preauthorization is required for the discogram requested by Provider.

Additionally, under the Commission’s rules at 28 TAC § 133.308(e)(2), a request for medical dispute resolution must be filed with the Commission’s MRD no later than the 45th day after the date the carrier denied approval of the party’s request for reconsideration. Otherwise the requesting party waives its right to independent review or medical dispute resolution.

C. Evidence and Analysis

Claimant testified that she requested medical dispute resolution from the Commission following Carrier’s denial for reconsideration. However, Claimant asserted she filed the incorrect form with the Commission, and the Commission notified her of this error on September 5, 2003. Thereafter, Claimant testified she filed her request for medical dispute resolution on the correct form.^[1]

The requested discogram should not be pre-authorized because the request for medical dispute resolution was untimely filed with the Commission. Carrier’s denial of reconsideration for the requested discogram was issued on July 2, 2003. From that date, the Commission’s “45-day” rule commenced. Claimant had until approximately ___, to file a request for medical dispute resolution. However, Claimant offered insufficient evidence regarding the date, and type of form that was initially filed with the Commission.^[2] Furthermore, Claimant could not cite any statute that suspends the “45-day” rule in situations like this. Because Claimant failed to prove she timely filed her request with the Commission, she waived her right to independent review and medical dispute resolution under 28 TAC § 133.308(e)(2).

Having waived her right to independent review and medical dispute resolution, the ALJ has no authority to determine the medical necessity of the requested discogram. Therefore, Carrier’s denial of preauthorization should be upheld.

II. FINDINGS OF FACT

1. ___ (Claimant) sustained a compensable back injury on ___.
2. Claimant came under the care of Son K. Nguyen, M.D. (Provider).
3. Dr. Nguyen recommended Claimant undergo a lumbar discogram.
4. Claimant sought preauthorization for a discogram from Old Republic Insurance Company (Carrier), which was denied on June 18, 2003.
5. Claimant’s request for reconsideration was denied by the Carrier on July 2, 2003.
6. Claimant’s request for independent review or medical dispute resolution was due with the Texas Workers’ Compensation Commission (the Commission) Medical Review Division (MRD) on or about August 16, 2003.
7. On September 5, 2003, the Commission informed Claimant that she filed her request for medical dispute resolution on the wrong form.
8. Claimant re-filed her request on the correct form, and the Commission’s MRD dismissed Claimant’s request for untimeliness.
9. Claimant requested a hearing before the State Office of Administrative Hearings (SOAH).
10. Notice of the hearing in this case was mailed to the parties on November 19, 2003. 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.
11. The hearing convened and closed on December 18, 2003, before Steven M. Rivas, Administrative Law Judge (ALJ). Claimant appeared and represented herself. Carrier appeared and was represented by Michael Portele, attorney. The hearing was adjourned and the record closed the same day.
12. There is insufficient evidence of when Claimant filed her request for medical dispute resolution.

III. CONCLUSIONS OF LAW

1. The Commission has jurisdiction over this matter pursuant to Section 413.031 of the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001et seq. (“the Act”).
2. SOAH has jurisdiction over 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. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann. §§ 2001.051 and 2001.052.
4. The Claimant, as Petitioner, had the burden of proof on appeal by a preponderance of the evidence under § 413.031 of the Act, and 28 Tex. Admin. Code §148.21(h).
5. Claimant waived her right to independent review and medical dispute resolution because her request to the Commission’s MRD was not shown to be timely filed under 28 TAC § 133.308(e)(2).

ORDER

IT IS, THEREFORE, ORDERED that the requested lumbar discogram not be preauthorized.

Signed on January 26, 2004.

STEVEN M. RIVAS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

1. . Claimant testified the incorrect form was downloaded from the Commission’s website. The Commission apparently attached the correct form (TWCC-60) to its letter to Claimant on September 5, 2003.↑
2. . On cross-examination, Claimant admitted she did not have a copy of the original form she filed with the Commission, nor did she have any evidence of when the Commission received the form.↑