Appeals Panel Decision Manual - Procedural Issues
The Texas Rules of Evidence do not strictly apply in administrative workers' compensation proceedings. Section 410.165(a). Given this, whether or not evidence will be admitted or excluded during a CCH is determined under Division rules, and is generally within the HO's discretion. Section 142.2(8); APD 042176.
Division rules require parties seeking to introduce information into evidence to exchange that evidence no later than 15 days after the BRC, and thereafter as the evidence becomes available. Section 142.13(c). Documents that are actually exchanged or made available to all parties at the BRC need not be reexchanged within 15 days of the BRC. APD 941048. Evidence not timely exchanged pursuant to Section 142.13(c) will be admitted only if the HO finds good cause exists for failing to timely exchange the information. In determining whether a party has good cause for exchanging evidence after the 15-day period, the HO must apply a two-prong test. First, the HO must consider whether the party exercised due diligence in obtaining the evidence. APD 042996. Second, the HO must determine whether, after obtaining the evidence, the party promptly provided the evidence to the other party. APD 001090. Whether good cause exists is a question of fact for the HO to decide. Section 142.13; APD 000291.
Admission of Commission Records
Generally, a HO will not take official notice of the entire claims file, however, the relevant and essential portions of the Division's records contained in the claims file are admissible and can be offered as exhibits by any party. APD 010282. Additionally, the HO may, on his or her own initiative, take official notice of a relevant document in the Division's claims file, even when no party has offered the document into evidence, in order to fulfill the HO's duty to fully develop the record. Sections 410.163(b) and 142.2(10); APD 941171.
On September 3, 2003, a CCH was held to determine compensability and IC wavier. At the CCH, the IC sought to admit a confirmation e-mail from Commission acknowledging that the IC had timely filed a "cert-21." The IW objected on the grounds that the e-mail had not been timely exchanged. The HO sustained the IW's objection and the document was not admitted. The HO determined that the IC waived the right to contest compensability. The AP reversed and rendered a decision that the IC did not waive the right to contest compensability. While the rules of exchange should be enforced, the HO should have taken official notice of the Commission's acknowledgement of receipt of the "cert-21" offered as an exhibit because it was, in effect, a Commission record. APD 032619-s.
Other Items Given Consideration
Standard of Review/Abuse of Discretion
To obtain a reversal of a HO's decision based on the admission or exclusion of evidence, the appellant must first show that the evidentiary ruling was an abuse of discretion. In determining whether there has been an abuse of discretion, the AP looks to see if the HO acted without reference to any guiding rules or principles. Morrow v. HEB, Inc., 714 S.W. 2d 297 (Tex. 1986); APD 951076.
If the AP determines that the HO abused his/her discretion in admitting or excluding evidence, the AP then looks to see if reversible error occurred. The error is reversible if it was reasonably calculated to cause, and probably did cause, the rendition of an improper decision. Hernandez v. Hernandez, 611 S.W. 2d 732 (Tex. Civ. App.-San Antonio 1981, no writ); APD 041596.
Admission of Evidence was an Abuse of Discretion But No Reversible Error Found. The HO admitted a document into evidence over the carrier's objection that portions of the document had not been timely exchanged. The AP found that the HO had abused his discretion in admitting the document because it was not timely exchanged and there was no showing of good cause. Because the evidence in the document was cumulative, and the remaining evidence was sufficient to support the HO's determinations, the AP found that the erroneous admission of the complained of document probably did not cause the rendition of an improper judgment. Therefore, the erroneous admission of the document was not reversible error. APD 010739.
Admission of Evidence was an Abuse of Discretion and Reversible Error Found. In resolving the disputed issue, the HO relied on documents offered into evidence by the IW which were intended to prove the date the IC received first written notice of the claimed injury. The IC objected to the admission of the documents because they were not timely exchanged within 15 days of the BRC, and there was no good cause for the failure to timely exchange the documents. The HO admitted the documents because he determined that they were either listed in the BRC report or discussed at the BRC. Neither listing documents in the BRC report nor discussing them at the BRC constitutes good cause for failing to timely exchange documents. The HO's reliance on the erroneously admitted documents to prove the date on which the IC received first written notice of the claimed injury probably did cause the rendition of an improper decision. The AP reversed and remanded the case for further consideration excluding the records in question. APD 992764.
The HO found that the IW injured his back moving a drill weighing 60 pounds while working on (Date of Injury). At the CCH IC asserted that the IW did not injure his back at work, but injured it working part-time for another employer or somewhere else. To support his claim the IW offered as evidence a statement from his father that the IW had not worked part-time as a bricklayer since 1997; a statement from the manager of the shoe store where the IW had worked part-time indicating that the IW did no heavy lifting and that he was not injured at his part-time job; a statement from a co-worker that IW did not do "hard work" at his part-time job; and testimony from two witnesses to bolster his claim. The IC objected to the admission and consideration of this evidence because the IW did not provide the documents and names of the witnesses to the IC within 15 days after the BRC. The HO overruled the objection and admitted the evidence for good cause because there was "no harm, no foul" and because IW hired a new attorney after the BRC. The HO's ruling was improper and an abuse of discretion because "no harm, no foul" is not a proper legal standard, and hiring a new attorney was not good cause for not exchanging evidence within the required 15-day time period. Because the resolution of the case largely turned on the IW's credibility, and because all of the erroneously admitted evidence went to bolster the IW's credibility, the HO's error in admitting the evidence was reasonably calculated to cause and probably did cause the rendition of an improper decision. Therefore, the HO's error did constitute reversible error. APD 001090.
In resolving the disputed issue of disability the HO made two separate requests for additional records. The second request made by the HO occurred 16 days after the record had closed and was made directly to the ombudsman for “whatever records of [a specific doctor] she was able to get.” Section 410.163(b) provides that a HO "shall ensure the preservation of the rights of the parties and the full development of facts required for the determination to be made." HOs are also specifically authorized to “request additional evidence” from the parties pursuant to Rule 142.2(10). These important responsibilities must be exercised in light of and balanced with the fundamental requirement that both sides receive a fair and objective hearing. The HO is the neutral fact finder and, as such, cannot serve or appear to serve as an advocate. While the HO has a responsibility to develop facts necessary for an informed decision, this must be done in a manner and procedure that is outcome neutral and protects the procedural and substantive rights of the parties. The HO relied upon the documentation he requested and obtained from the ombudsman after the CCH to determine the disability issue. In order to maintain a neutral forum, a HO’s decision to reopen the record should typically be to clarify other evidence offered by a party or, at least, other evidence should point to the missing evidence as key to a well-informed resolution of the dispute. Based on the timing, manner, and repeated nature of the contacts, the HO’s request for additional records after the CCH constituted an abuse of discretion. Because that documentation was erroneously admitted by the HO and cannot be used to support his disability determination, a new decision was rendered that the IW did not have disability for the period in dispute. APD 160787; APD 160618.
Exclusion of Evidence was an Abuse of Discretion and No Reversible Error Found. The IC called Mr. K as a witness. On direct examination, Mr. K testified regarding the circumstances under which the injury was reported. During cross-examination, Mr. K objected on two occasions asserting the questions were irrelevant. The HO told Mr. K to answer the questions or his testimony would be stricken in its entirety. Mr. K engaged the HO regarding her tone of voice, and the HO dismissed Mr. K and excluded his testimony over the IC's objection. The HO should have considered the testimony given by Mr. K prior to being dismissed and decided the weight and credibility to give it based upon his reluctance to answer questions on cross-examination. The HO abused her discretion in excluding Mr. K's testimony in its entirety. Because the substance of Mr. K's testimony was somewhat reiterated by another IC witness, the HO's error was not reasonably calculated to cause and probably did not cause the rendition of an improper decision. Therefore, the HO's error did not constitute reversible error. APD 022830.
Exclusion of Evidence was an Abuse of Discretion and Reversible Error Found. The IW offered medical records from a doctor, who was not on the approved doctor's list, to establish that she could only work part-time. The IC objected on the grounds that the offered records were from a doctor that was not on the approved doctor's list, and the HO sustained the objection and excluded the records. Section 180.20(A)(2) provides that doctors who provide any function in the Texas workers' compensation system must be on the approved doctor's list. However, Section 410.165(b) provides that the HO shall "accept the written reports signed by a health care provider." Reports from doctors not on the approved doctor's list may not be excluded from evidence based on Section 180.20(A)(2). It was an abuse of discretion for the HO to exclude reports from the IW's medical provider on that basis. The AP found reversible error because the HO had inquired several times about evidence addressing the IW's work abilities, and the exclusion of the evidence that specifically addressed these inquiries was reasonably calculated to cause an improper judgment. APD 051172-s.
Must Object at the CCH or Error is Waived. Generally, if the admission or exclusion of evidence is not objected to at the CCH, any argument that there was error is waived and the AP will not reverse the HO's decision based upon an evidentiary objection on appeal. See Dicker v. Security Insurance Co., 474 SW2d 334 (Tex. Civ. App.-Waco 1971).
Issue Not Previously Raised (P02)
In most cases when a dispute arises regarding income or medical benefits, and such dispute falls under the jurisdiction of the hearings division, a party will request a BRC to attempt to resolve the dispute(s). Sections 141.1 and 142.5. [Cross reference. Spinal surgery (S01); (S02)]. If any disputes raised at the BRC remain unresolved, the BRO will write a report detailing each issue not resolved. The BRC report establishes the issues to be resolved at the CCH that follows the BRC. An issue that was not raised at a BRC, was resolved by agreement of the parties at the BRC, or was not identified in the BRC report may not be considered by a HO at the CCH which follows unless:
The parties unanimously agree to add the issue(s). Sections 410.151(b)(1) and 142.7(b)(3) and (d); or
The HO determines that there is good cause to add the issue(s). Sections 410.151(b)(2) and 142.7(e); or
The issue(s) were actually litigated by the parties. APD 041286.
Following the CCH, the HO will issue a decision resolving the disputed issues properly raised. Either party may appeal the HO's decision to the Commission's AP. The AP's jurisdiction is limited to review of the issues decided at the CCH. The AP will generally not consider issues raised for the first time on appeal. APD 040259.
General Rule. The HO may only decide the issues which the parties have properly raised. A HO may not add new issues on the HO's own motion. Where there was no stated issue regarding the date of injury, the parties stipulated to the claimed date of injury for purposes of venue and coverage, and the date of injury was not actually litigated, it was error for the HO to determine a different date of injury than that stipulated to by the parties for purposes of venue and coverage. APD 001679.
Exception. In some cases, it is necessary for the HO to make findings of fact on issues not certified for resolution at the CCH. This is so because the certified issues cannot be decided without first making certain threshold determinations. The following are some examples:
Compensable Injury. Before benefits may be awarded, it must first be established that the IW has sustained a compensable injury. Whether the IW has sustained a compensable injury is a threshold issue. APD 021303.
Insurance Coverage. The only issue at the CCH was who was the IW's employer on the date of injury. The HO made findings of fact that on the date of the claimed injury, carrier 1 had coverage for employer 1, and that carrier 2 had coverage for employer 2. The HO determined that employer 2 was the IW's employer on the date of the injury, and he ordered carrier 2 to pay benefits. Carrier 1 had elected to limit its participation in the CCH because of issues involving this carrier that were in litigation. Carrier 1 appealed the HO's finding that it provided coverage for employer 1, which was ultimately found not to be the IW's employer, on the date of injury. The only disputed issue at the CCH involved who was the IW's employer on the date of injury, however, to award benefits, the HO must determine the carrier that had coverage for the IW's employer on the date of injury. See Section 142.16(a)(2). It was not error for the HO to make findings of fact regarding the identity of the two employer's carriers on the date of injury. The HO based his determination that carrier 1 had coverage for employer 1 on a certificate of insurance which was in evidence. APD 042246.
IR/Extent of Injury. The sole certified issue out of the BRC involved the IW's proper IR. In reaching his decision regarding the IW's IR, the HO made findings regarding the extent of the IW's injury. The carrier appealed, asserting that such findings were improper because extent of injury was not an issue at the CCH. The HO did not err because when the issue before him is IR, the extent of the injury is a threshold issue. APD 042154.
IR/MMI. Despite the fact that the issue was framed in terms of what was the IW's IR, it was not error for the HO to determine a date of MMI. MMI is a threshold issue to finding an IR. When IR is the stated issue, MMI is of necessity a part of that issue, unless specifically resolved or stipulated to. APD 93328.
Good Cause. To add an issue which was not raised at the BRC, a party must timely file a request to add the issue pursuant to Section 142.7(e), and the HO must find that good cause exists to add the issue. APD 992759. Whether or not good cause exists to add additional issues is within the discretion of the HO, and that determination will not be reversed on appeal unless there is a finding that the HO abused his or her discretion in adding, or refusing to add, the additional issue(s) not listed in the BRC report. APD 031719.
Represented Party. An additional dispute may be raised by a represented party in writing, provided that he or she identifies and describes the dispute, states the reason for the request, sends the request to the Commission no later than 15 days before the CCH, delivers a copy of the request to the other parties, and the HO determines that good cause exists to add the issue. Section 142.7(e)(1); APD 992759.
Unrepresented Claimant. An additional dispute may be raised by an unrepresented claimant by contacting the Commission in any manner no later than 15 days before the CCH, and the HO determines that good cause exists to add the issue. Section 142.7(e)(2); APD 972042.
Good Cause Established. A BRC was held on September 21, 1999, regarding the IW's entitlement to sixth quarter SIBs. A BRC report was distributed to the parties on September 24, 1999, indicating that a CCH would be held on November 15, 1999, to determine whether or not the IW is entitled to Sibs for the disputed quarter. On October 5, 1999, the IW made a written request to add the issue of whether or not the carrier had waived the right to contest her entitlement to Sibs for the disputed quarter. The written request contained the IW's reasons for adding the issue. The IW stated that at the BRC she had incorrectly relied on a facsimile copy of her Sibs application that was filed with the carrier on July 12, 1999, instead of a green card indicating that the carrier received the Sibs application on June 22, 1999. As of October 12, 1999, the HO's notes indicated that no response to the request had been received from the carrier. On October 14, 1999, the HO issued an order, upon a finding of good cause, adding the waiver issue. On October 28, 1999, the carrier filed a motion opposing the IW's request to add the waiver issue. At the CCH, the carrier renewed its objection to the addition of the waiver issue, and the HO reaffirmed her ruling, stating that good cause had been shown and that the carrier had received adequate notice of the additional issue to prepare to litigate it. The HO properly added the issue because the IW timely filed a written request which identified and described the dispute, stated the reason for the request, delivered a copy of the request to the other parties, and the HO found good cause to add the issue and that finding was supported by the record. APD 992759.
Good Cause Not Established. In her response to the BRC report, the IW requested to add the issue of whether the carrier had waived the right to contest her entitlement to Sibs for the third quarter. The carrier objected to the addition of the issue. At the CCH, the HO denied the request to add the waiver issue, stating that there was no good cause to add the issue. In his decision and order, the HO changed his ruling and decided to add the issue stating that he had initially denied the IW's request because he thought the request was untimely filed. The HO noted that he recalculated the dates, found the request was timely filed, and determined that there was good cause to add the carrier waiver issue. The HO did not specify what evidence showed good cause. The HO abused his discretion in adding the issue because the IW presented no evidence supporting a finding of good cause. Rule 142.7(e) requires that the request be timely filed and a finding of good cause. APD 001987.
A BRC was held and the issues of compensable injury and disability were certified as the issues to be resolved at the CCH. The carrier requested the addition of an issue regarding a BFOE. The carrier stated that it had good cause to add the BFOE issue because the employer's BFOE was not tendered to the IW until after the BRC. The evidence indicated that the alleged BFOE was made to the IW more than 30 days prior to the CCH, and the carrier failed to submit a written request for addition of the issue no later than 15 days prior to the CCH. The request for the addition of the issue was properly denied. APD 033140.
Good Cause Finding Not Required. If an issue is actually discussed and left unresolved at the BRC, and the BRC report does not list the issue as one to be resolved at the CCH, no good cause need be shown to have the issue added. This is so because the issue is not an "additional" issue within the meaning of Section 142.7. APD 972651.
The IW's beneficiary timely filed a response to the BRC report requesting that the issue of carrier waiver be added. In the request to add the issue, the beneficiary stated that the issue of carrier waiver was discussed at the BRC but that the BRO failed to list the issue as one to be resolved at the CCH. In its reply to the beneficiary's response to the BRC report, the carrier acknowledged that the issue of carrier waiver was discussed at the BRC. The HO denied the request to add the carrier waiver issue because he felt that the decision in Continental Casualty Company v. Downs, 81 S.W.3d 803 (Tex. 2002) was never intended to be applied retroactively and it was, therefore, a "nonissue." The HO erred in failing to add the issue because it was discussed at the BRC, and the beneficiary complied with the procedural requirements of Section 142.7(e). APD 002210.
Issue Actually Litigated. The stated issue from the BRC report involved whether or not the IW's compensable injury extended to specific diagnoses of herniated discs and radiculopathy involving the cervical spine. The HO determined that the IW's compensable injury did not extend to include the specific conditions listed in the issue, but that it did extend to include a cervical strain. The carrier appealed, asserting that the HO erred in determining that the compensable injury extends to and includes a cervical strain because that was not a listed condition in the issue. The hearing officer did not commit reversible error because the record and evidence from the CCH showed that what was actually litigated was generally whether the compensable injury extends to include an injury to the cervical spine. APD 042740.
Issue Not Actually Litigated. The stated issues at the CCH involved the identity of the IW's employer for purposes of the 1989 Act on the date of his compensable injury, and whether or not the IW had disability as a result of his compensable injury. In addition to making findings regarding the listed issues, the HO further made findings regarding the IW's post injury earnings (PIE). On appeal, the carrier asserted that the HO erred as a matter of law by making findings regarding PIE. The issue of PIE was not before the HO nor was it actually litigated by the parties. The HO's findings regarding PIE were stricken from the decision and order. APD 041283.
Standard of Review
The Appeals Panel will review a hearing officer's finding of good cause to add an additional issue, or finding of no good cause when excluding an additional issue, on an abuse of discretion standard. APD 971626.
Benefits for a compensable injury are defined as medical benefits, income benefits, death benefits, or burial benefits. Section 401.011(5). The AP has jurisdiction in cases involving disputes over income benefits, death benefits, and burial benefits. Section 140.1(1) and (2). The AP also has jurisdiction to determine whether or not an IW is entitled to medical benefits based upon a finding of compensability; however, with the sole exception of spinal surgeries under Sections 408.026 and 133.308(u), the AP does not have jurisdiction to determine what medical treatment is reasonable and necessary for an IW's compensable injury in the past or in the future or the amount to be paid for such treatment. Sections 413.031 and 133.305. [Cross-references: Spinal Surgery (S01); (S02)]
Jurisdiction Over Claims/Issues. The decision of the AP regarding benefits is binding during the pendency of an appeal for judicial review. Section 410.205(b). In Lopez v. Texas Workers' Comp. Ins. Fund, 11 S.W.3d 490 (Tex. App.-Austin 2000, pet. denied), the court held that Section 410.205(b) clearly provides that the ultimate administrative ruling-whether granting or denying benefits-remains in effect until overturned by a final and enforceable judicial decision. APD 080713. During judicial review of the APD on any disputed issue relating to a workers' compensation claim, the Division retains jurisdiction of all other issues related to the claim. Section 410.207; APD 080713. A party may show through court documents that judicial review is no longer pending.
The AP's jurisdiction is limited to issues decided at the CCH. Sections 410.202(c) and 410.203; APD 91057. The AP will generally not consider issues raised for the first time on appeal. APD 040259. However, when information is presented on appeal to the AP that the IC participating in the CCH did not have coverage, the AP may remand for the HO to determine who the correct IC is. APD 070475; APD 050802. [Cross-reference: Issue Not Previously Raised (P02)].
Proper Appointment of DD Issue. [Cross-reference: Other Procedural Issues (P00)] Dr. R was appointed as the DD to determine if the IW has reached MMI and, if so, the assign the IW's IR. The issue before the HO was whether Dr. R was properly appointed as the second DD and if not should his report be invalidated and should the IW be re-examined. The HO found that the issue of whether Dr. R was properly appointed as the second DD does not affect benefits, and that HOs do not have jurisdiction to hear a sole issue that does not affect benefits. Section 410.002. The HO therefore determined that she had no jurisdiction to decide whether Dr. R was properly appointed as the second DD. The AP reversed the HO's determination and stated the issue of whether Dr. R was properly appointed as the second DD does affect the IW's. benefits. If an IW has disability under Section 408.101, pursuant to Section 408.102(a), TIBs continue until the IW reaches MMI. Section 408.121(a) provides in part that an IW's entitlement to IIBs begins on the day after the date the IW reaches MMI. Section 408.0041(a) provides, in part, that at the request of the IC or IW, or on the commissioner's own order, the commissioner may order a medical examination to resolve questions about MMI, IR, and other matters. Section 408.0041(f) provides in part that unless otherwise ordered by the commissioner, the IC shall pay benefits based on the opinion of the DD during the pendency of any dispute. Because an opinion by the DD regarding MMI or IR does affect benefits, the HO had jurisdiction in this case. The AP rendered a new decision that the Division does have jurisdiction to resolve the issue and remanded to the HO to make a determination on whether Dr. R was properly appointed as the second DD. APD 090135.
Jurisdiction Over Subclaimants. A person may file a written claim with the Division as a subclaimant if the person has provided compensation, either directly or indirectly, to or for an IW or legal beneficiary. The person must also have sought and been refused reimbursement from the IC. Section 409.009; APD 052857-s. A Texas workers' compensation IC may be a subclaimant. APD 052857-s.
In an appeal to the AP, an IC argued that the HO lacked jurisdiction over a subclaimant who had failed to meet the requirements of Section 409.009 by demonstrating that it had made a claim for reimbursement and that the IC had denied the claim. The AP found that the HO did not lack jurisdiction over the subclaimant. The AP also found that a party's failure to satisfy the requirements of Section 409.009 relates more to a challenge of a health care provider's status as a subclaimant, and that the IC's failure to raise the issue at the CCH resulted in a waiver of that issue. APD 011962-s. In APD 081065-s, a subclaimant health care insurer was found to have standing to seek adjudication of a dispute when compensability was denied and the IW has declined to pursue a claim. The subclaimant had standing under Section 409.009 because it indirectly provided compensation for the IW and it sought and was refused reimbursement from the IC. The authorized representative of the subclaimant health care insurer did not have standing under Section 409.009 in that it did not meet the requirements of Section 409.009 because the evidence did not establish that the authorized representative had provided compensation directly or indirectly to the IW. APD 081065-s. See APD 080576-s where a subclaimant health care insurer's standing to seek adjudication of the dispute under Section 409.0091 was an issue at the CCH and on appeal to the AP, and the AP determined that the subclaimant did not have standing under Section 409.0091 in that Section 409.0091 did not apply under the facts of that case. [Cross-reference: Other Procedural Issues (P00)].
Relief of Agreement (P04)
Benefits for a compensable signed written agreement made in accordance with Section 410.029 is binding on the IC and an IW through the conclusion of all matters relating to the claim, who is represented by an attorney, unless the agreement is set aside by the Division or a court based upon a finding of:
- Newly discovered evidence; or
- Other good and sufficient cause.
A signed written agreement is binding through the conclusion of all matters relating to the claim on an unrepresented IW unless the Division, on a finding of good cause, relieves the IW from the effects of the agreement. Section 410.030; Section 147.4; APD 002152.
An oral agreement reached during a CCH, which is preserved on the record, is effective and binding on the parties on the date made in the same manner as a signed written agreement, subject to the provisions of Section 147.4(d)(1) and (2). Section 147.4(c); APD 050265; APD 041843.
ICs and Represented IWs.
Fraud. The IW signed an agreement concerning her MMI date and IR. Eight months later, the IW sought to be relieved from the effects of the agreement based upon fraudulent conduct by her attorney. Specifically, the IW asserted that the agreement had been signed by the IC prior to her signing it, and that she had signed it on the hood of her attorney's car without being advised of the binding effects of such an agreement. The HO determined that the IW failed to prove that fraud existed, and that the IW was bound by the agreement. Whether fraud exists is a question of fact for the HO to decide. The HO's determination that there had been no fraud or misrepresentations by the IW's attorney was sufficiently supported by the evidence. APD 961151.
Newly Discovered Evidence. At a BRC, the IW and IC entered into a written agreement that the compensable injury included the IW's heart and that the IC had waived the right to contest compensability. A year later the IC attempted to dispute the claimed injuries, asserting that it had newly discovered evidence that the IW had a congenital heart condition. The evidence showed that the IC was aware of the claimant's heart condition, although described by a different name, prior to entering into the agreement. The IC was not relieved from the effects of the agreement based upon newly discovered evidence. Texas Workers' Compensation Insurance Fund v. Martinez, 30 S.W.3rd 490 (Tex. App.-Texarkana 2000, pet. denied); APD 970704.
The IW signed an agreement resolving the issues of disability, MMI, and IR. After signing the agreement, the IW was diagnosed as having a L5-S1 disc herniation. The IW sought relief from the effects of the agreement based upon this newly discovered evidence. The HO found in favor of the IW, and relieved her from the effects of the agreement. The AP found that the HO had abused her discretion in concluding that the IW was relieved from the effects of the agreement and reversed and rendered a decision that she was not relieved from the effects of the agreement. The AP held that in making a determination of what constitutes good cause, the HO should consider whether the evidence was unknown prior to signing the agreement, whether the failure to discover the evidence was due to a lack of diligence, whether the evidence was so material that had it been known it would have probably changed the outcome, and whether it was cumulative, corroborative, collateral, or impeaching. Because there was no evidence that the HO considered any of the above factors, the HO abused her discretion. APD 992397.
Other Good and Sufficient Cause. The IW signed an agreement regarding his IR. The IR was based upon the certifications of two doctors, both of whom indicated on the certifications that the IR was conditional and subject to change if the IW had surgery. Prior to signing the agreement, the IW did in fact have surgery. Because the agreement was based upon a conditional IR certification, it was not valid and not in compliance with Section 147.9(b)(2). As such, good and sufficient cause existed to relieve the IW from the effects of the agreement. APD 971604.
The standard for relieving an unrepresented IW from the effects of an agreement is less than that for an IC or represented IW. APD 002152. An agreement is binding on an unrepresented IW unless the Division, for good cause, relieves the IW from the effects of the agreement. Section 410.030(b); Section 147.4(d)(2).
Good Cause Found. The IW, who was not represented by an attorney, and the IC entered into a written agreement that the IW sustained a compensable rotator cuff strain, and that he suffered no disability. The IW testified at the CCH that he did know he had a rotator cuff tear at the time he signed the agreement. The IW testified that he signed the agreement because when the IC's representative told the BRO they would pay for a shoulder strain, the BRO told the IC's representative, "No, whatever he needs." The IW thought that would include surgery if necessary. The HO determined that there was good cause to relieve the IW from the effects of the agreement because he did not understand that the IC was only accepting a shoulder strain based upon the BRO's statement to the IC's representative that the IC would be liable for whatever the IW needed regarding his injury, and that, at the time the parties entered into the agreement, the IW did not know the full extent of his injury because he had not yet been diagnosed with a rotator cuff tear. Whether good cause exists is a question of fact for the HO to resolve. APD 010641.
No Good Cause Found. The IW and IC signed an agreement which stated that the IW's compensable injury did not extend to include the lumbar spine. At the time the IW entered into the agreement, he was not represented by an attorney. The IW argued that he should be relieved from the effects of the agreement because he was confused about the nature of the injury, he had ineffective assistance by the ombudsman, there was a lack of consideration for the agreement, and he was under financial pressure to sign the agreement. Evidence was presented that both the ombudsman and the BRO explained the agreement to the IW before he signed it. The HO determined that good cause did not exist to relieve the IW from the effects of the agreement. Whether good cause exists is a question of fact for the HO to resolve. APD 033267.
Appearance at CCH/10-Day Letter. When a party fails to appear for a CCH, the HO will send a letter, known as a 10-day letter, notifying the absent party that it may contact the Division within 10 days following the date of the letter and request that the CCH be reconvened to permit the party to present evidence on the issue or issues and show cause why it failed to attend the CCH. The purpose of the 10-day letter is to give the nonappearing party the opportunity to meaningfully participate in the dispute resolution process. APD 071706. If the party fails to respond to the 10-day letter within the 10-day period prescribed in the letter the HO will issue a decision.
HO's Failure to Issue 10-Day Letter. The HO failed to issue a 10-day letter after the first failure of the attorney to appear and issued a decision that the attorney was not entitled to fees. The attorney appealed and the AP remanded the case to the HO to send a 10-day letter. The HO relied on the remand notice issued by the Hearings Division, which set a specific date for the CCH, and did not send a 10-day letter. None of the parties appeared at the CCH on remand and the HO issued another decision that the attorney was not entitled to fees. The AP reversed and rendered a decision that the procedure was not followed and the fees could not be determined. APD 033116-s.
Abuse of Discretion.
Appointment of a Subsequent DD. An abuse of discretion occurs when an action is taken without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The AP has applied an abuse of discretion standard to the appointment of a second DD. APD 030467. Section 126.7(h) provides as follows:
(h) If at the time the request [for a DD] is made, the Division has previously assigned a [DD] to the claim, the Division shall use that doctor again, if the doctor is still qualified and available. Otherwise, the Division shall select the next available doctor on the Division's [DD] List (DDL) who:
(1) has not previously treated or examined the employee within the past 12 months and has not examined or treated the employee with regard to a medical condition being evaluated in the [DD] examination;
(2) does not have any disqualifying associations as described in [Section] 180.21 of this title (relating to Division [DDL]); and
(3) has credentials appropriate to the issue in question and the employee's medical condition.
Burden of Proof on the Party Challenging the DD's Appointment. The HO found that a second DD was improperly appointed. The HO correctly placed the burden of proof on the IC, which was the party challenging the Division's order appointing the second DD; however, the HO found that the Division abused its discretion in the appointment of the second DD. The AP reversed the HO's determination that the second DD was improperly appointed and rendered a decision that, based on the evidence, the second DD was properly appointed. In this case, the only evidence regarding why a second DD was appointed is a DRIS note reflecting that the IW would have to be sent to a different DD because the initial DD could not meet the time frame for setting up a DD appointment. Therefore, there was no showing by the IC that the Division abused its discretion in appointing the second DD. The AP stated that an order of an administrative body is presumed to be valid and that the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action, citing Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref'd). APD 042669-s.
The HO found that the second DD was improperly appointed. The HO incorrectly placed the burden of proof on the IC and found that it was not established by the IC that the first DD was unable or unwilling to continue as DD. However, the IW was the party challenging the appointment of the second DD, therefore the IW had the burden to establish that the second DD was not properly appointed. Because the HO incorrectly placed the burden of proof on the IC, the AP reversed and remanded the case back to the HO in order to apply the correct burden of proof in considering the evidence presented at the CCH. APD 042979.
Not an Abuse of Discretion.
Matrix Use. The Division's use of the matrix in determining whether a DD's credentials are appropriate for the issue in question and the IW's medical condition is not an abuse of discretion. APD 081398-s.
HO Omission of Issue in Decision and Order. A HO's decision and order that fails to make a finding of fact, conclusion of law, or a decision on an issue included in the BRC report, agreed to by the parties at the CCH, and not withdrawn by or agreed to a resolution by the parties is considered incomplete and will be reversed and remanded for the HO to make a determination on the omitted issue. APD 090397.
Interrogatories. The IW received interrogatories from the IC and objected to the form of the question. The IC did not file a motion to compel. At the CCH the IC objected to all of the IW's testimony and timely exchanged exhibits based on the IW's refusal to answer the interrogatories. The HO sustained the IC's objection and excluded the evidence and IW's testimony citing Section 410.161. The AP reversed the HO's decision citing Section 410.158, which states that "discovery . . . may not seek information that may readily be derived from documentary evidence described in Section 410.160. Answers to discovery . . . need not duplicate information that may readily be derived from documentary evidence . . ." Section 410.158(b). The AP remanded the case for the HO to admit and consider all exhibits which were properly and timely exchanged and to allow the IW to testify. APD 002932-s.
Notice of Network Requirements. Proper notice of network requirements can be found under Texas Insurance Code Section 1305.005 (Participation In Network; Notice of Network Requirements) and 28 TEX. ADMIN. CODE § 10.60 (Notice of Network Requirements; Employee Information). Section 1305.005(d) and Rule 10.60(a) state, in part, that the insurance carrier shall provide to the employer, and the employer shall provide to the employer's employees, notice of network requirements, including all information required by Section 1305.451.
In APD 132919, the issue was whether the IC or the employer properly provided the IW with the information required by Texas Insurance Code Section 1305.451. The HO held that neither the IC nor the employer properly provided the information to the IW because the evidence did not establish that the information provided to the IW contained a list of network providers as required in Insurance Code Section 1305.451(b)(12). However, the AP noted the evidence established that on the date of hire, the IW signed a Workers’ Compensation Health Care Network Employee Acknowledgement Form and received an information packet entitled Important Information for Employees Regarding Medical Treatment for a Work-Related Injury or Illness which contained all of the information required by Insurance Code Section 1305.451. The AP further stated that the evidence showed that an electronic link to the provider list was provided to the IW on page two of the information packet. Furthermore, 28 TEX. ADMIN. CODE § 10.60(c)(3) (Rule 10.60(c)(3)) provides that the notice of network requirements may be in an electronic format provided a paper version is available upon request. The evidence did not indicate that the IW requested a paper version from the IC or the employer. Since the evidence indicated that the information provided to the IW satisfied the requirements in Insurance Code Section 1305.451, the AP reversed the HO’s determination that neither the IC nor the employer properly provided the information to the IC. To the extent that any prior cases held to the contrary, they are superseded by this decision.
Presumption of Administrative Regularity. An order of an administrative body is presumed to be valid and the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action. Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref'd); APD 042669-s.
In the absence of proof to the contrary, there is the presumption that every public official will discharge duties imposed on him by law. Sanchez v. Tex. Indus., Inc., 485 S.W.2d 385 (Tex. Civ. App.-Waco 1972, writ ref'd n.r.e.).
Required IC Information at the CCH. Section 410.164(c) requires the IC to file with the HO and deliver to the IW a single document stating the true corporate name of the IC and the name and address of the IC's registered agent for service of process. This document is part of the CCH record. APD 011533-s.
Registered Agent. An IC is required to provide a physical address of a registered agent for service of process in Texas. APD 011845-s. (Please note that APD 011845-s discussed TEX. INS. CODE ANN. Art. 1.36, which was recodified 2001, effective June 1, 2003 as TEX. INS. CODE ANN. Art. 804.102).
Street Address. The address provided for the registered agent was a post office box, where personal service of process could not be effectuated. A street address for the registered agent is required. APD 011758-s.
Scope of Section 124.3 as an Issue at the CCH. [Cross-reference: Timely Contest by Carrier (C03)] At the CCH on remand the issues before the HO were (1) who is the correct IC for the DOI and (2) does the IC have liability for benefits prior to the date the IC filed notice of denial pursuant to Section 124.3. The IW requested to add an issue of IC waiver of the claimed injury but the attorney representing both ICs at the CCH objected on the grounds that an IC waiver issue had not previously been raised. The HO declined to add the issue, and determined the correct IC and that the correct IC waived the right to contest compensability of or liability for the claimed injury because the IC failed to file a denial within 60 days of receiving first written notice of the injury. The IC appealed and argued that the HO decided an issue not before her by incorporating IC waiver in her decision. The AP disagreed, noting that Section 124.3 covers both IC liability for accrued benefits for failure to dispute by the 15th day after receiving first written notice of the claimed injury as well as IC waiver of the right to contest compensability of the claimed injury if not disputed on or before the 60th day after receiving first written notice of the claimed injury pursuant to Section 124.3(b). APD 081665-s.
Subclaimants. Section 140.1(4) defines "party to a proceeding" as a person entitled to take part in a proceeding because of a direct legal interest in the outcome. The AP reversed the HO's decision on the issue of the extent of the IW's compensable injury and remanded the case to the HO because a subclaimant was added as a party before the CCH record closed, but the subclaimant was not given notice of the CCH. The subclaimant had a direct legal interest in the outcome of the case but was not given the opportunity to participate in the dispute resolution process on the disputed extent of injury issue. APD 070647-s.
Standing. Standing is defined as "a party's right to make a legal claim or seek judicial enforcement of a duty or right." (Black's Law Dictionary, 7th edition). The general test for standing in Texas requires that there "(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought." See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993), citing Bd. of Water Eng'r v. City of San Antonio, 283 S.W.2d 722, 724 (Tex. 1955).
Subclaimant Under Section 409.009. The issues of standing as a subclaimant for both the health care insurer and the authorized representative of the health care insurer were broadly worded and were not limited to the application of either Sections 409.0091 or 409.009. The subclaimant health care insurer had standing under Section 409.009 because it indirectly provided compensation for the IW and it sought and was refused reimbursement from the IC. The authorized representative of the subclaimant health care insurer did not have standing under Section 409.009 in that it did not meet the requirements of Section 409.009 because the evidence did not establish that the authorized representative had provided compensation directly or indirectly to the IW. Under the facts of this case, Section 409.0091 does not apply because: (1) the IW's DOI is prior to September 1, 2007; (2) the subclaimant was provided information under Section 402.084(c-3) after January 1, 2007 (pertinent to the application of Section 409.0091(s)); and (3) the self-insured had denied compensability of the claim. (See APD 080576-s for a discussion of the applicability of Section 409.0091.) APD 081065-s. [Cross reference: Jurisdiction (P03)].
Subclaimant Under Section 409.0091. One of the issues at the CCH was whether the subclaimant, a health care insurer, has legal standing to seek adjudication of the dispute pursuant to section 409.0091. Under the facts of this case the AP determined the subclaimant did not have standing under Section 409.0091 in that Section 409.0091 did not apply because: (1) the IW's DOI is prior to September 1, 2007; (2) the subclaimant was provided information under Section 402.084(c-3) after January 1, 2007 (pertinent to the application of Section 409.0091(s)); (3) the self-insured had denied compensability of the claim; and (4) the Division had determined that the IW did not have a compensable injury. The AP held that as Section 409.0091 does not apply, the subclaimant does not have legal standing to seek adjudication of the dispute under Section 409.0091. The AP made no determination regarding whether the subclaimant had standing as a subclaimant under Section 409.009 because that was not an issue before the HO and it was not litigated. APD 080576-s. [Cross reference: Jurisdiction (P03)].
Timeliness of Appeal to AP. A written appeal must be filed with the AP on or before the 15th day after the HO's Decision and Order is received not counting Saturdays and Sundays and holidays listed in Texas Government Code Section 662.003. Section 410.202. The Division must send the HO's Decision and Order to the IW and to the IW's representative, if any. The 15-day period does not begin until both the IW and the IW's representative, if any, receive the Decision and Order. Frank v. Liberty Ins. Corp., 255 S.W.3d 314 (Tex. App.-Austin 2008, pet. denied). Unless the great weight of evidence indicates otherwise, an IW is deemed to receive the HO's Decision and Order not later than the 5th day after the date it is mailed by the Division. Sections 102.5(d) and 143.3(d)(1). If the deemed receipt date is not a working day, the deemed receipt date is the next working day. Section 102.3(a)(3); APD 051129-s; Ackerson v. Clarendon Nat'l Ins. Co., 168 S.W.3d 273 (Tex. App.-Austin 2005, pet. denied). Unless the great weight of the evidence indicates otherwise, an IC is deemed to receive the HO's decision the first working day after the day the HO's decision is placed in the IC's Austin representative's box. Sections 102.5(d) and 143.3(d)(2); Trinity Universal Ins. Co. v. Day, 155 S.W.3d 337 (Tex. App.-El Paso 2004, pet. denied). The deemed date of receipt of the HO's decision is used to determine the date of receipt even though a party indicates an earlier date of receipt. APD 050897-s. However, when Division records show the mailing of the HO's decision to the IW on a particular day at the correct address, the mere assertion that the decision was received after the deemed date of receipt is not sufficient to extend the date of receipt past the deemed date of receipt provided by Division rules. APD 041319. The party appealing the HO's decision must establish jurisdiction and timeliness of the appeal at the time the appeal is filed. APD 050891. A party has timely filed an appeal under Section 143.3 if a party mails its appeal within 15 days after the party is deemed to have received the HO's decision and the Division receives the appeal or an identical copy of the appeal within 20 days after the party is deemed to have received the HO's decision. Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653 (Tex. App.-Dallas 2008, no pet.).
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