DECISION AND ORDER
Kenneth Berliner, M.D., requested a hearing on a decision by the Texas Workers’ Compensation Commission (Commission) Medical Review Division (MRD) denying his request for additional reimbursement from Zenith Insurance Company (Zenith) for an intra-discal electro-thermal (IDET) procedure provided to an injured worker. On March 29, 2004, Zenith filed a motion to dismiss, contending that Dr. Berliner’s appeal was not timely filed under Commission rules and should be dismissed for lack of jurisdiction. The Administrative Law Judge (ALJ) concludes that Zenith’s motion should be granted and Dr. Berliner’s appeal should be dismissed.
A pre-hearing conference was held to consider the motion on May 27, 2004, at which time both parties presented evidence and argument. Dr. Berliner appeared and represented himself. Zenith appeared and was represented by its counsel, Erin Shanley. The record was left open for both parties to present legal arguments and Zenith did so on June 10, 2004. Dr. Berliner did not submit legal arguments.
I. DISCUSSION
Factual and Legal Background
The following facts were established at the May 27, 2004, pre-hearing conference:
- On January 22, 2004, the MRD mailed to Dr. Berliner the decision that is the basis of his appeal.
- Under Commission rules,[1] there is a rebuttable presumption that Dr. Berliner received the MRD decision five days after it was mailed, or January 27, 2004.
- There is no evidence of when Dr. Berliner actually received the MRD decision.
- Dr. Berliner requested a hearing on the MRD decision by letter dated February 11, 2004, sent to the Commission’s Chief Clerk of Proceedings.
- A date stamp stating “Received TWCC Chief Clerk of Proceedings” indicates the Commission received Dr. Berliner’s appeal on February 18, 2004.
- Dr. Berliner’s office policy is to send an appeal to the Commission by facsimile transmission (FAX) at the same time it sends the appeal by mail.
- Neither Dr. Berliner nor his office manager, Brenda Gonzales, can remember whether the appeal letter was actually sent by FAX at the time it was mailed.
- Ms. Gonzales would need to look into the files to know whether the letter was sent by FAX.
Commission Rule 148.3(a) provides,
§ 148.3. Requesting a Hearing
(a)The person requesting a hearing must file a written request with the Chief Clerk of Proceedings, Hearings Division of the commission not later than 20 days after receipt of official notice of adverse action from the commission, receipt of the decision from the medical review division on a review of medical service or a medical fee under the Act, § 413.031, or receipt of a notice of the intent of the commission to determine the legal rights, duties, or privileges of a party within the scope of § 148.1 of this title (relating to Scope and Applicability).
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Commission Rule 133.307.p) provides,
§ 133.307. Medical Dispute Resolution of a Medical Fee Dispute
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a)Appeal. A party to a medical fee dispute may appeal the commission decision by filing a written request for a State Office of Administrative Hearings (SOAH) hearing with the Chief Clerk of Proceedings, Division of Hearings in accordance with § 148.3 of this title (relating to Requesting a Hearing.
(1) the appeal must be filed no later than 20 days from the date the party received the commission decision. The date of receipt of the decision shall be the acknowledgment date as defined in § 133.1 of this title. . . .[2]
Commission Rule 102.3(e) says unless otherwise stated in a rule, “any written or telephonic communications required to be filed by a specified time will be considered timely only if received prior to the end of normal business hours on the last permissible day for filing.”
SOAH’s rules at 1 TAC § 155.56(a) say that SOAH may dismiss a case based on a party’s failure to prosecute in accordance with the requirements of rules or statutes.
Analysis
The ALJ concludes that Zenith’s motion to dismiss Dr. Berliner’s appeal for lack of jurisdiction should be granted. Dr. Berliner’s appeal was not received by the Commission until February 18, 2004, twenty-two days after he was deemed to have received the decision under Rule 102.5(d) and two days after the twenty-day deadline stated in Rules 133.307(p) and 148.3(a). There was no evidence that Dr. Berliner received the MRD decision later than the deemed-received date of January 27, 2004.
Dr. Berliner introduced evidence that it is the policy of his office to send appeals to the Commission by FAX at the same time it sends them by mail. However, neither Dr. Berliner nor his office manager, Brenda Gonzales, have an independent recollection of whether the appeal was actually sent by FAX in this case. Texas case law says that a routine practice of mailing will raise a presumption of mailing only when supported by corroborating evidence that the practice was actually carried out.[3]
II.FINDINGS OF FACT
- Kenneth Berliner, M.D., requested a hearing on a decision by the Texas Workers’ Compensation Commission (Commission) Medical Review Division (MRD) denying his request to receive additional reimbursement from Zenith Insurance Company (Zenith), in accordance with the amount he billed on July 13, 2002, for an intra-discal electro-thermal (IDET) procedure provided to an injured worker.
- On March 29, 2004, Zenith filed a motion to dismiss, contending that Dr. Berliner’s appeal was not timely filed under Commission rules and should be dismissed for lack of jurisdiction.
- The Commission mailed a copy of the MRD decision to Dr. Berliner on January 22, 2004.
- Dr. Berliner appealed the MRD decision in a letter dated February 11, 2004, sent to the Commission’s Chief Clerk of Proceedings.
- The Commission’s Chief Clerk of Proceedings received Dr. Berliner’s appeal on February 18, 2004.
- Dr. Berliner’s office policy is to send an appeal to the Commission by facsimile transmission (FAX) at the same time it sends the appeal by mail.
- Neither Dr. Berliner nor his office manager, Brenda Gonzales, have an independent recollection of whether the letter was actually sent by FAX at the time it was mailed.
- There was no corroborating evidence that Dr. Berliner’s routine practice of sending an appeal by FAX at the time it was sent by mail was actually carried out in this case.
III. CONCLUSIONS OF LAW
- The State Office of Administrative Hearings (SOAH) has jurisdiction over this proceeding, including the authority to issue a decision and order. Tex. Lab. Code Ann.§413.031(k) and Tex. Gov’t Code Ann.ch. 2003.
- SOAH lacks jurisdiction to consider Dr. Berliner’s appeal. 28 Tex. Admin. Code (TAC) §§ 102.3(e), 102.5(d), 133.1(a)(1), 133.307(p), and 148.3(a).
- Dr. Berliner’s appeal should be dismissed. 1 TAC § 155.56(a).
ORDER
IT IS THEREFORE ORDERED that the appeal of Kenneth Berliner, M.D., of an MRD decision denying his request to receive additional reimbursement for an intra-discal electro-thermal (IDET) procedure provided to an injured worker, in accordance with the amount he billed on July 13, 2002, be, and the same is hereby, DISMISSED.
Signed July 1, 2004.
JAMES W. NORMAN
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS