DECISION AND ORDER

___ (Petitioner) appealed the decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in Docket No. M2-04-1235-01, which dismissed her request for preauthorization of the purchase of a TENS unit based on Petitioner’s failure to request reconsideration of the initial denial by V.F. Corporation (Respondent), a self-insurer under the Texas Workers’ Compensation Act (Act). This decision finds Petitioner was not entitled to a review of her claim because it was not submitted for reconsideration by Respondent as required by the Commission’s rules.

PROCEDURAL HISTORY

The hearing in this matter convened and closed June 21, 2004, at the State Office of Administrative Hearings, 300 W. 15^th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. M.D. appeared pro se with the assistance of Commission Ombudsman Luz Loza and a Spanish language interpreter. Respondent was represented by its attorney Greg Solcher. The Commission did not participate in the hearing. The record closed that date.

Respondent argued that Petitioner failed to comply with the procedural prerequisites for bringing an appeal to the MRD because she did not file a request for reconsideration of the original

denial as required by the Commission’s rules at 28 TEX. ADMIN. CODE (TAC) §133.304(m) and133.308(e)(2).^[1]

The documents admitted into evidence did not show that Petitioner requested reconsideration and Petitioner admitted in testimony that she did not send a request for reconsideration to Respondent and was not sure whether the provider did so. Without proof that Respondent had an opportunity to reconsider Petitioner’s request, there was no showing that the procedural requirements for filing an appeal had been met. The MRD correctly dismissed Petitioner’s appeal for failing to comply with the requirement that a request for reconsideration be made prior to filing an appeal. This case should be dismissed based on the same grounds.

FINDINGS OF FACT

1. ___ (Petitioner), a claimant under the Texas Workers’ Compensation Act, appealed the denial by V.F. Corporation (Respondent) of her request for preauthorization of the purchase of a TENS unit.
2. After the original denial by Respondent, neither Petitioner nor anyone on her behalf filed a request to reconsider with Respondent.
3. Petitioner and Respondent appeared or were represented at the hearing in this matter held June 21, 2004.

CONCLUSIONS OF LAW

1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers’ Compensation Act (Act), TEX. LABOR CODE ANN. § 413.031.
2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to §413.031(d) of the Act and TEX. GOV’T CODE ANN. ch. 2003.
3. The hearing was conducted pursuant to the Administrative Procedure Act, TEX. GOV’T CODE ANN. ch. 2001 and the Commission’s rules, 28 TEX. ADMIN. CODE (TAC) §§ 133.305 and 133.308.
4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
5. Petitioner had the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i); 1 TAC§ 155.41.
6. The Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (Commission) can consider an appeal of a denial of preauthorization by a carrier only after the requesting party has requested the carrier reconsider the denial, pursuant to the Commission’s rule at 28 TEX. ADMIN. CODE § 133.308(e)(2).
7. Prior to filing her appeal with the MRD, Petitioner failed to fulfill the procedural requirement in 28 TAC §133.308(e)(2) necessary to appeal Respondent’s denial of her request for a TENS unit.
8. The MRD properly dismissed Petitioner’s appeal in this matter.

ORDER

It is ORDERED that the appeal of Petitioner ___ of the denial by V.F. for preauthorization of the purchase of a TENS unit be dismissed from the State Office of Administrative Hearings because Petitioner failed to meet the procedural requirement of an appeal of a denial to the MRD under 28 TAC §133.308(e)(2).

Signed June 28, 2004.

ANN LANDEROS
Administrative Law Judge

STATE OFFICE OF ADMINISTRATIVE HEADINGS

1. 28 TAC §13.304(m) states:

The sender of a medical bill may request medical dispute resolution in accordance with §§133.305 of this title (relating to Medical Dispute Resolution) if the sender of a medical bill has requested reconsideration in accordance with this section and: (1) after reconsideration, the sender is still dissatisfied with the insurance carrier’s action on the medical bill; or (2) the sender has not received the insurance carrier’s response to the request for reconsideration by the 28th day after the date the request for reconsideration was sent to the insurance carrier.

28 TAC § 133.308 states:

(e) Timeliness. A person or entity who fails to timely file a request waives the right to independent review or medical dispute resolution. The commission shall deem a request to be filed on the date the division receives the request, and timeliness shall be determined as follows:

(1) A request for retrospective necessity dispute resolution of a medical bill pursuant to§§133.304, ofthis title (relating to Medical Payments and Denials), shall be considered timely if it is filed with the division no later than one (1) year after the date(s) of service in the dispute.

(2) A request for prospective necessity dispute resolution shall be considered timely if it is filed with the division no later than the 45th day after the date the carrier denied approval of the party’s request for reconsideration of denial of health care that requires preauthorization or concurrent review pursuant to the provisions of §§134.600.↑