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Appeals Panel Decision Manual - Procedural Issues

Abbreviation List

Procedural Issues

Admissibility of Evidence (P01)

The Texas Rules of Evidence do not strictly apply in administrative workers' compensation proceedings. TLC Section 410.165(a). Given this, whether or not evidence will be admitted or excluded during a CCH is determined under DWC rules, and is generally within the ALJ's discretion. 28 TAC Section 142.2(8); APD 042176.

DWC 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. 28 TAC Section 142.13(c). The AP has held that a party who belatedly investigates the facts and then does not disclose known information in order to make further investigation and development runs the risk of having evidence excluded for failure of exchange. APD 991744.

Documents that are actually exchanged or made available to all parties at the BRC need not be reexchanged within 15 days after the BRC. APD 941048.

Evidence not timely exchanged pursuant to 28 TAC Section 142.13(c) will be admitted only if the ALJ finds that 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 ALJ must apply a two-prong test. First, the ALJ must consider whether the party exercised due diligence in obtaining the evidence. APD 042996. Second, the ALJ 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 ALJ to decide. 28 TAC Section 142.13; APD 000291.

Admission of DWC Records

Generally, an ALJ will not take official notice of the entire claims file; however, the relevant and essential portions of the DWC records contained in the claims file are admissible and can be offered as exhibits by any party. APD 010282. In addition, the ALJ may, on his or her own initiative, take official notice of a relevant document in the DWC claims file, even when no party has offered the document into evidence, in order to fulfill the ALJ's duty to fully develop the facts. TLC Section 410.163(b) and 28 TAC Section 142.2(10); APD 941171. In fact, the AP has previously required ALJs to take official notice of essential DWC records where compliance with the 1989 Act is at issue. APD 031441 and APD 210061

A CCH was held to determine compensability and IC waiver. At the CCH, the IC sought to admit a confirmation email from DWC acknowledging that the IC had timely filed a "cert-21." The IE objected on the grounds that the email had not been timely exchanged. The ALJ sustained the IE's objection and the document was not admitted. The ALJ 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 ALJ should have taken official notice of DWC's acknowledgement of receipt of the "cert-21" offered as an exhibit because it was, in effect, a DWC record. APD 032619-s.

Other Items Given Consideration

Although not entered as evidence, ALJs and the AP may consider provisions of the Texas Workers' Compensation Act, DWC rules, court cases, and APDs in rendering a decision. APD 020426.

Standard of Review/Abuse of Discretion

To obtain a reversal of an ALJ'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 ALJ 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 ALJ abused his or 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.

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 ALJ's decision based on an evidentiary objection on appeal. See Dicker v. Security Insurance Co., 474 SW2d S.W. 2d 334 (Tex. Civ. App.—Waco 1971).

Admission of Evidence was an Abuse of Discretion But No Reversible Error Found

The ALJ admitted a document into evidence over the IC's objection that portions of the document had not been timely exchanged. The AP found that the ALJ 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 ALJ's determinations, the AP found that the erroneous admission of the document that the IC objected to 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 ALJ relied on documents offered into evidence by the IE 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 after the BRC, and there was no good cause for the failure to timely exchange the documents. The ALJ admitted the documents because he determined that they were either listed in the BRC report or discussed at the BRC. However, listing documents in the BRC report or discussing them at the BRC does not constitute good cause for failing to timely exchange documents. The ALJ's reliance on the erroneously admitted documents to prove the date 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.

Note: APD 992764, which involved the issue of, among others, IC waiver of extent-of-injury conditions, was decided in the Texas Supreme Court’s decision in State Office of Risk Mgmt. v. Lawton, 295 S.W.3d 646 (Tex. 2009). The Court in Lawton held that 28 TAC Section 124.3 does not provide a waiver for disputes of the extent of the compensable injury.

The ALJ found that the IE injured his back moving a drill weighing 60 pounds while working. At the CCH, the IC asserted that the IE did not injure his back at work, but injured it working part-time for another employer or somewhere else. To support his claim the IE offered as evidence a statement from his father that the IE had not worked part-time as a bricklayer since about two years before the injury; a statement from the manager of the shoe store where the IE had worked part-time indicating that the IE did no heavy lifting and that he was not injured at his part-time job; a statement from a coworker that the IE 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 IE did not provide the documents and names of the witnesses to the IC within 15 days after the BRC. The ALJ overruled the objection and admitted the evidence for good cause because there was "no harm, no foul" and because the IE hired a new attorney after the BRC. The ALJ'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 IE's credibility, and because all of the erroneously admitted evidence went to bolster the IE's credibility, the ALJ's error in admitting the evidence was reasonably calculated to cause and probably did cause the rendition of an improper decision. Therefore, the ALJ's error did constitute reversible error. APD 001090.

In resolving the disputed issue of disability, the ALJ made two separate requests for additional records. The second request made by the ALJ 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.” TLC Section 410.163(b) provides that an ALJ "shall ensure the preservation of the rights of the parties and the full development of facts required for the determination to be made." ALJs are also specifically authorized to “request additional evidence” from the parties under 28 TAC Section 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 ALJ is the neutral fact finder and, as such, cannot serve or appear to serve as an advocate. While the ALJ 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 ALJ 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, an ALJ’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 ALJ’s request for additional records after the CCH constituted an abuse of discretion. Because that documentation was erroneously admitted by the ALJ and cannot be used to support his disability determination, a new decision was rendered that the IE did not have disability for the period in dispute. APD 160787; APD 160618.

In a CCH involving a dispute over entitlement to death benefits, the ALJ admitted into evidence excerpts from a deposition the claimant-beneficiary offered over the objection of the IC. The IC representative objected to the admission of the documentary evidence in question on the grounds that it was not timely exchanged. As part of his ruling overruling the IC representative’s objection and in favor of admission of the deposition excerpt for good cause, the ALJ stated on the CCH record that the threshold for good cause for a late exchange was lowered because of the nature of the dispute and that DWC rules provide that additional information obtained through a request for discovery could be exchanged on receipt. The AP found that the ALJ erred in overruling the IC representative’s objection and admitting the document without a showing of good cause for the claimant-beneficiary’s untimely exchange. The AP held that the threshold for establishing good cause for untimely exchange of documentary evidence is not lowered in disputes concerning death benefits. The AP also disagreed with the ALJ’s ruling that good cause exists where evidence is obtained by the opposing party through additional discovery processes as authorized by 28 TAC Section 142.13(f). The AP reversed and remanded the case back to the ALJ to make a decision without consideration of the deposition excerpts. APD 160363.

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 ALJ told Mr. K to answer the questions, or his testimony would be stricken in its entirety. Mr. K engaged the ALJ on the tone of her admonishment, and the ALJ dismissed Mr. K and excluded his testimony over the IC representative's objection. The ALJ 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 ALJ 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 ALJ's error was not reasonably calculated to cause and probably did not cause the rendition of an improper decision. Therefore, the ALJ's error did not constitute reversible error. APD 022830.

Exclusion of Evidence was an Abuse of Discretion and Reversible Error Found

The IE 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 who was not on the approved doctor's list. The ALJ sustained the objection and excluded the records. 28 TAC Section 180.20(A)(2), which was in effect at the time of this APD, provided that doctors who provide any function in the Texas workers' compensation system must be on the approved doctor's list. However, TLC Section 410.165(b) provides that the ALJ shall "accept the written reports signed by a health care provider." It was an abuse of discretion for the ALJ to exclude reports from the IE's medical provider on the basis that the doctor was not on the approved doctor list. The AP found reversible error because the ALJ inquired several times about evidence that addressed the IE's work abilities. The exclusion of the evidence that specifically addressed these inquiries was reasonably calculated to cause an improper judgment. APD 051172-s.

Note: The DWC approved doctor list expired on August 31, 2007, and 28 TAC Section 180.20 was subsequently repealed on January 9, 2011.

At the CCH, the IC offered exhibits for admission into evidence. The IE objected to one exhibit, a report from the IC-selected RME doctor, on the basis that the RME doctor was not properly appointed by DWC under 28 TAC Section 126.5. There was no dispute that this report was timely exchanged by the IC prior to the CCH. The issue of whether the RME doctor was properly appointed had not been raised at the BRC and was not certified as an issue prior to the CCH. The ALJ kept the record open following the CCH to determine whether the RME report in question would be admitted or excluded. Prior to closing the record, the ALJ issued a post-hearing order excluding the RME report from evidence because the RME was not approved in accordance with the Texas Workers’ Compensation Act and DWC rules and, under 28 TAC Section 126.5(b), DWC shall not consider a report of an RME doctor that was not approved or obtained in accordance with DWC rules. The AP reversed and remanded the case back to the ALJ, holding that the ALJ abused his discretion because his exclusion of the RME report was based on an issue that was not before him to decide (that is, whether the RME doctor was properly appointed). The AP also cited TLC Section 410.165(b), which provides that the ALJ shall accept all written reports signed by a health care provider. APD 161283.

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 DWC, a party will request a BRC to attempt to resolve the disputed issue(s). 28 TAC Sections 141.1 and 142.5. If any disputes over issues 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 an ALJ at the CCH which follows unless:

The parties unanimously agree to add the issue(s). TLC Section 410.151(b)(1) and 28 TAC Section 142.7(b)(3) and (d); or
The ALJ determines that there is good cause to add the issue(s). TLC Section 410.151(b)(2) and 28 TAC 142.7(e); or
The issue(s) were actually litigated by the parties. APD 041286.

Following the CCH, the ALJ will issue a decision resolving the disputed issues properly raised. Either party may appeal the ALJ's decision to DWC's AP. The AP's jurisdiction is generally limited to review of the issues decided at the CCH. The AP will not typically consider issues raised for the first time on appeal. APD 040259.

General Rule.

The ALJ may only decide the issues which the parties have properly raised. Subject to the exceptions addressed below, an ALJ may not add new issues on the ALJ's own motion. Where there was no stated issue regarding the DOI, the parties stipulated to the claimed DOI for purposes of venue and coverage, and the DOI was not actually litigated, it was error for the ALJ to determine a different DOI than that stipulated to by the parties for purposes of venue and coverage. APD 001679.

The BRC report indicated that the sole issue in dispute in this case was whether the IE was entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with TLC Section 408.161. The ALJ made a finding that the IE did not suffer from imbecility as a naturally flowing result of his compensable traumatic brain injury. The AP noted that this finding was supported by the evidence. However, the ALJ then determined the IE was entitled to LIBs because he found that the IE had the permanent and total loss of use of both feet at or above the ankle as a result of the compensable injury. The AP noted that TLC Section 410.151(b) and 28 TAC Section 142.7 provide that issues not considered at a BRC may only be added by consent of the parties or upon a showing of good cause. While consent may be inferred if the parties actually litigated an issue not otherwise identified, the record in this case did not establish that the parties litigated whether the IE was entitled to LIBs based upon the theory of the total and permanent loss of use of both feet at or above the ankle. The specific issue before the ALJ as certified and amended at the CCH was whether the IE was entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable imbecility. Therefore, the AP stated that the ALJ’s determination that the IE was entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle exceeded the scope of the issue before him. The AP reversed the ALJ’s determination that the IE was entitled to LIBs, and rendered a new decision that the IE was not entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with TLC Section 408.161. APD 170558.

Exception.

In some cases, it is necessary for the ALJ 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 IE has sustained a compensable injury. "Compensable injury" means an injury that arises out of and in the course and scope of employment for which compensation is payable under the Act. TLC Section 401.011(10). Whether the IE has sustained a compensable injury is a threshold issue. APD 021303.

Insurance Coverage.

The only issue at the CCH was who was the IE's employer on the DOI. The ALJ made findings of fact that on the date of the claimed injury, IC 1 had coverage for employer 1, and that IC 2 had coverage for employer 2. The ALJ determined that employer 2 was the IE's employer on the DOI, and he ordered IC 2 to pay benefits. IC 1 had elected to limit its participation in the CCH because of issues involving this IC that were in litigation. IC 1 appealed the ALJ's finding that it provided coverage for employer 1, which was ultimately found not to be the IE's employer, on the DOI. The only disputed issue at the CCH involved who was the IE's employer on the DOI, however, to award benefits, the ALJ must determine the IC that had coverage for the IE's employer on the DOI. See 28 TAC Section 142.16(a)(2). It was not error for the ALJ to make findings of fact regarding the identity of the two employers' carriers on the DOI. The ALJ based his determination that IC 1 had coverage for employer 1 on a certificate of insurance which was in evidence. APD 042246.

MMI &IR/Extent of Injury.

The AP has held that when raised, an extent-of-injury issue is a threshold issue that must be resolved before MMI and IR can be resolved. APD 110854, APD 120180, and APD 132849.

IR/MMI.

Despite the fact that the issue concerned the IE's IR only, it was not error for the ALJ 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 28 TAC Section 142.7(e), and the ALJ must find that good cause exists to add the issue. APD 992759. Whether good cause exists to add additional issues is within the discretion of the ALJ, and that determination will not be reversed on appeal unless there is a finding that the ALJ abused his or her discretion in adding, or refusing to add, the additional issue(s) not listed in the BRC report. APD 031719.

Raising Additional Disputes Prior to the Hearing

By Unanimous Consent

Under 28 TAC Section 142.7(d), effective January 7, 2019: parties may, by unanimous consent, submit for inclusion in the statement of disputes one or more disputes not identified as unresolved in the BRO's report. Additional disputes submitted by consent shall:

  • be made in writing;
  • identify the dispute and explain the party's position on it;
  • be signed by all parties;
  • be sent to the division no later than 10 days before the hearing; and
  • explain why the issue was not raised earlier.

By Permission of the ALJ

Under 28 TAC Section 142.7(e)(1), effective January 7, 2019: if requester is an IC, an IC representative, an IE represented by an attorney, or an IE assisted by OIEC, an additional dispute may be raised provided that the request:

  • is in writing;
  • identifies and describes the dispute or disputes;
  • states the reason for the request;
  • is sent to DWC no later than 15 days before the hearing;
  • is delivered to all other parties, as provided by 28 TAC Section 142.4; and
  • the ALJ determines that good cause exists to add the issue.

An IE who is neither represented by an attorney nor assisted by OIEC may request additional disputes to be included in the statement of disputes by permission of the ALJ by contacting DWC in any manner no later than 15 days before the hearing. 28 TAC Section 142.7(e)(2), effective January 7, 2019.

Good Cause Established.

A BRC was held on September 21, 1999, regarding the IE'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 the IE is entitled to SIBs for the disputed quarter. On October 5, 1999, the IE made a written request to add the issue of whether the IC had waived the right to contest her entitlement to SIBs for the disputed quarter. The written request contained the IE's reasons for adding the issue. The IE stated that, at the BRC, she had incorrectly relied on a facsimile copy of her SIBs application that was filed with the IC on July 12, 1999, instead of a green card indicating that the IC received the SIBs application on June 22, 1999. As of October 12, 1999, the ALJ's notes indicated that no response to the request had been received from the IC. On October 14, 1999, the ALJ issued an order, upon a finding of good cause, adding the waiver issue. On October 28, 1999, the IC filed a motion opposing the IE's request to add the waiver issue. At the CCH, the IC renewed its objection to the addition of the waiver issue, and the ALJ reaffirmed her ruling, stating that good cause had been shown and that the IC had received adequate notice of the additional issue to prepare to litigate it. The ALJ properly added the issue because the IE 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 ALJ found good cause to add the issue and that finding was supported by the record. APD 992759.

Good Cause Not Established.

A BRC was held and the issues of compensability and disability were certified as the issues to be resolved at the CCH. The IC requested the addition of an issue regarding a BFOE. The IC stated that it had good cause to add the BFOE issue because the employer's BFOE was not tendered to the IE until after the BRC. The evidence indicated that the alleged BFOE was made to the IE more than 30 days prior to the CCH, and the IC 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 28 TAC Section 142.7. APD 972651.

The IE'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 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 IC acknowledged that the issue of waiver was discussed at the BRC. The ALJ denied the request to add the 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 ALJ erred in failing to add the issue because it was discussed at the BRC, and the beneficiary complied with the procedural requirements of 28 TAC Section 142.7(e). APD 002210.

Issue Litigation

Issue(s) Actually Litigated.

The stated issue from the BRC report involved whether the IE's compensable injury extended to specific diagnoses of herniated discs and radiculopathy involving the cervical spine. The ALJ determined that the IE'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 IC appealed, asserting that the ALJ 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 ALJ 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.

The issues in the BRO report were MMI and IR, and the ALJ issued a decision on only those two issues. The AP found that the additional issues of extent of injury and whether a second DD was properly appointed were both actually litigated by the parties in the CCH. The case was thus remanded back to the ALJ for her to add those issues and make a decision. APD 182017.

Condition Within Extent-of-Injury Issue Actually Litigated.

Among the conditions in the extent-of-injury issue in the BRC report and as agreed upon and actually litigated at the CCH was spondylolisthesis at C5-6. The ALJ omitted that condition from the decision and order. The AP cited TLC Section 410.168, which provides that the ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. The AP reversed and remanded the case back to the ALJ to make a determination on the compensability of the omitted condition. APD 181376. See also APD 182119.

Issue Not Actually Litigated.

The stated issues at the CCH involved the identity of the IE's employer for purposes of the Texas Workers' Compensation Act on the date of his compensable injury, and whether the IE had disability as a result of his compensable injury. In addition to making findings regarding the listed issues, the ALJ further made findings regarding the IE's PIE. On appeal, the IC asserted that the ALJ erred as a matter of law by making findings regarding PIE. The issue of PIE was not before the ALJ nor was it actually litigated by the parties. The ALJ's findings regarding PIE were stricken from the decision and order. APD 041283.

The BRC report certified issues of extent of injury, MMI, IR, and disability for the CCH. At the CCH, the parties agreed to withdraw the extent-of-injury issue and litigated only the issues of MMI, IR, and disability. In the ALJ’s decision, in addition to her determinations on the issues of MMI, IR, and disability, she made a determination on the extent-of-injury issue that had been withdrawn at the CCH. The AP reversed and rendered by striking the ALJ’s extent-of-injury determination, since it exceeded the scope of the disputed issues. APD 182544.

Standard of Review

The AP will review an ALJ'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.

Jurisdiction (P03)

Benefits for a compensable injury are defined as medical benefits, income benefits, death benefits, or burial benefits. TLC Section 401.011(5). The AP has jurisdiction in cases involving disputes over income benefits, death benefits, and burial benefits. 28 TAC Section 140.1(1) and (2). The AP also has jurisdiction to determine whether an IE is entitled to medical benefits based on a finding of compensability; however, the AP does not have jurisdiction to determine what medical treatment is reasonable and necessary for an IE's compensable injury in the past or in the future or the amount to be paid for such treatment. TLC Section 413.031 and 28 TAC Section 133.305.

Jurisdiction over Claims/Issues.

The decision of the AP regarding benefits is binding during the pendency of an appeal for judicial review. TLC 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 TLC Section 410.205(b) clearly provides that the ultimate administrative ruling-whether granting or denying benefits-remains in effect until a final and enforceable judicial decision overturns it. APD 080713; APD 200483. During judicial review of the APD on any disputed issue relating to a workers' compensation claim, DWC retains jurisdiction of all other issues related to the claim. TLC Section 410.207; APD 080713; APD 200483. 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. TLC 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 ALJ to determine who the correct IC is. APD 070475; APD 050802; APD 182321. [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 IE has reached MMI and, if so, assign the IE's IR. The issue before the ALJ was whether Dr. R was properly appointed as the second DD and, if not, whether his report should be invalidated and whether the IE should be reexamined. The ALJ found that the issue of whether Dr. R was properly appointed as the second DD does not affect benefits, and that ALJs do not have jurisdiction to hear a sole issue that does not affect benefits. TLC Section 410.002. Therefore, the ALJ determined that she had no jurisdiction to decide whether Dr. R was properly appointed as the second DD. The AP reversed the ALJ's determination and stated the issue of whether Dr. R was properly appointed as the second DD does affect the IE's benefits. If an IE has disability under TLC Section 408.101, pursuant to TLC Section 408.102(a), TIBs continue until the IE reaches MMI. TLC Section 408.121(a) provides in part that an IE's entitlement to IIBs begins on the day after the date the IE reaches MMI. TLC Section 408.0041(a) provides, in part, that at the request of the IC or IE, or on the commissioner's own order, the commissioner may order a medical examination to resolve questions about MMI, IR, and other matters. TLC 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 the DD's opinion on MMI or IR does affect benefits, the ALJ had jurisdiction in this case. The AP rendered a new decision that DWC does have jurisdiction to resolve the issue and remanded the case back to the ALJ to determine whether Dr. R was properly appointed as the second DD. APD 090135.

Jurisdiction over Subclaimants.

A person may file a written claim with DWC as a subclaimant if the person has provided compensation, either directly or indirectly, to or for an IE or legal beneficiary. The person must also have sought and been refused reimbursement from the IC. TLC Section 409.009; APD 052857-s. A Texas workers' compensation IC may be a subclaimant. APD 052857-s. A subclaimant as described in TLC Section 409.009 is a party to a claim concerning workers' compensation benefits. 28 TAC Section 140.6(b); APD 190929.

In an appeal to the AP, an IC argued that the ALJ lacked jurisdiction over a subclaimant who had failed to meet the requirements of TLC 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 ALJ did not lack jurisdiction over the subclaimant. The AP also found that a party's failure to satisfy the requirements of TLC 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 IE has declined to pursue a claim. The subclaimant had standing under TLC Section 409.009 because it indirectly provided compensation for the IE and it sought and was refused reimbursement from the IC. The authorized representative of the subclaimant health care insurer did not have standing under TLC Section 409.009. It did not meet the requirements of TLC Section 409.009 because the evidence did not establish that the authorized representative had provided compensation directly or indirectly to the IE. APD 081065-s. See APD 080576-s where a subclaimant health care insurer's standing to seek adjudication of the dispute under TLC Section 409.0091 was an issue at the CCH and on appeal to the AP. The AP determined that the subclaimant did not have standing under TLC Section 409.0091 because TLC Section 409.0091 did not apply under the facts of that case. [Cross-reference: Other Procedural Issues (P00)].

Relief of Agreement (P04)

Where an IE is represented by an attorney, a signed written agreement made in accordance with TLC Section 410.029 is binding on the IC and the IE through the conclusion of all matters relating to the claim unless the agreement is set aside by DWC or a court based upon a finding of:

  1. Fraud;
  2. Newly discovered evidence; or
  3. Other good and sufficient cause.

NOTE: This standard applies to ICs whether the IE is represented or unrepresented.

A signed written agreement is binding through the conclusion of all matters relating to the claim of an unrepresented IE unless DWC, on a finding of good cause, relieves the IE from the effects of the agreement. TLC Section 410.030; 28 TAC 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 28 TAC Section 147.4(d)(1) and (2); 28 TAC Section 147.4(c); APD 050265; APD 041843.

ICs and Represented IEs.

Fraud.

The IE signed an agreement concerning her MMI date and IR. Eight months later, the IE sought to be relieved from the effects of the agreement based upon fraudulent conduct by her attorney. Specifically, the IE 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 ALJ determined that the IE failed to prove that fraud existed, and that the IE was bound by the agreement. Whether fraud exists is a question of fact for the ALJ to decide. The ALJ's determination that there had been no fraud or misrepresentations by the IE's attorney was sufficiently supported by the evidence. APD 961151.

Newly Discovered Evidence.

At a BRC, the IE and IC entered into a written agreement that the compensable injury included the IE'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 IE 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.3d 490 (Tex. App.-Texarkana 2000, pet. denied); APD 970704.

The IE signed an agreement resolving the issues of disability, MMI, and IR. After signing the agreement, the IE was diagnosed as having a L5-S1 disc herniation. The IE sought relief from the effects of the agreement based upon this newly discovered evidence. The ALJ found in favor of the IE and relieved her from the effects of the agreement. The AP found that the ALJ had abused her discretion in concluding that the IE 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 ALJ 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. Merrifield v. Seyferth, 408 S.W.2d 558 (Tex. Civ. App.-Dallas 1966, no writ). Because there was no evidence that the ALJ considered any of the above factors, the ALJ abused her discretion and the AP reversed and rendered a decision that the agreement was final and binding and that there was not good cause for relieving the IE from the effects of the agreement. APD 992397.

Other Good and Sufficient Cause.

At the CCH, the IE was represented by an attorney, and the parties entered into an agreement on the issues of compensability, timely reporting, disability, extent of injury, MMI, and IR. That agreement was memorialized in a D&O issued by the ALJ after the CCH. The IE appealed the ALJ’s D&O, contending that she did not understand the agreement, that her attorney told her not to speak during the CCH, and that she was not given an opportunity to present her evidence. While an interpreter was present at the CCH to translate for the IE, the interpreter incorrectly translated portions of the parties’ agreement on extent of injury, as well as specific sections of the Labor Code, the ending date of disability, and other terminology. Throughout the CCH, the IE interrupted with questions regarding the issues in dispute. Given these problematic issues, the AP reversed and remanded the case back to the ALJ to make a determination on whether good cause existed to set aside the parties’ agreement. APD 111432.

At a CCH on remand, the IE did not appear, but his attorney did and entered into an oral agreement with the IC. The IE appealed the D&O issued by the ALJ following the CCH, requesting to be relieved from the effects of the agreement. The IE’s appeal reflected that, had he been present at the CCH, he would not have agreed to the resolution of the issues found in the D&O. The AP cited the binding effect of oral agreements under 28 TAC Section 147.4(c), but also noted that, even where the parties make an agreement on the record at a CCH, an ALJ may not permit an agreement to be made that is contrary to the 1989 Act and DWC rules. The AP found good and sufficient cause to set aside the oral agreement made at the CCH considering that the IE was not present at the CCH on remand, and there was no explanation requested by the ALJ or provided by the IE’s attorney as to why the IE was not present. Additionally, the AP found that the ALJ erred in the D&O by including language in the agreement that was not read into the record at the CCH, including a statement of the agreement on MMI and IR when those issues were not resolved on the record of the CCH. The AP rendered a decision setting aside the ALJ’s D&O. APD 150452.

Unrepresented IEs.

The standard for relieving an unrepresented IE from the effects of an agreement is less than that for an IC or represented IE. APD 002152. An agreement is binding on an unrepresented IE unless DWC, for good cause, relieves the IE from the effects of the agreement. TLC Section 410.030(b); 28 TAC Section 147.4(d)(2).

Good Cause Found.

The IE, who was not represented by an attorney, and the IC entered into a written agreement that the IE sustained a compensable rotator cuff strain, and that he suffered no disability. The IE testified at the CCH that he did know he had a rotator cuff tear at the time he signed the agreement. The IE 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 IE thought that would include surgery if necessary. The ALJ determined that there was good cause to relieve the IE 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 IE needed regarding his injury, and that, at the time the parties entered into the agreement, the IE 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 ALJ to resolve. APD 010641.

No Good Cause Found.

The IE and IC signed an agreement which stated that the IE's compensable injury did not extend to include the lumbar spine. At the time the IE entered into the agreement, he was not represented by an attorney. The IE 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 IE before he signed it. The ALJ determined that good cause did not exist to relieve the IE from the effects of the agreement. Whether good cause exists is a question of fact for the ALJ to resolve. APD 033267.

Other Procedural Issues (P00)

Appearance at CCH/10-Day Letter

When a party fails to appear for a CCH, the ALJ will send a letter, known as a 10-day letter, notifying the nonappearing party that they have 10 days from the receipt of the notice to respond in writing to DWC and show good cause for the party’s failure to attend. (28 TAC Section 142.11(a)) Other parties to the proceeding may reply, in writing, to the nonattending party’s response within three days of receipt of response. (28 TAC Section 142.11(b)) Under 28 TAC Section 142.11(c), the ALJ shall issue a written ruling based on the filings allowed under subsections (a) and (b) of this section, and, if the ALJ determines that good cause exists for the failure to attend, the hearing will be rescheduled. If good cause is not found, or if the nonattending party does not respond to the notice, the ALJ shall issue a decision based on the evidence presented at the hearing and may recommend the issuance of an administrative violation. Note: 28 TAC Section 142.11, subsections (a) through (c), cited above, went into effect on January 7, 2019. APD 190213 and APD 210196.

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. Note: APD 071706 was issued before the changes to 28 TAC Section 142.11 cited earlier.

10-Day Letter Sent to Party’s Incorrect Address

The ALJ’s 10-day letter was mailed to an incorrect address for the IE, who appealed, contending that he had not been able to respond to the 10-day letter or attend the CCH. The AP reversed and remanded the matter to the ALJ to take evidence concerning the IE’s nonappearance at the CCH. APD 220552. See also APD 201401.

ALJ's Failure to Issue 10-Day Letter

The ALJ 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 ALJ to send a 10-day letter. The ALJ relied on the remand notice issued by the DWC Hearings program area, 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 ALJ 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. See also APD 190213, cited above.

Note: APD 033116-s was issued before the changes to 28 TAC Section 142.11 cited earlier.

Appointment of a DD

[Cross-references: Disability (I03); Date of MMI (I06); IR (I07); Extent of Injury (C07)]

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.

Under 28 TAC Section 127.5(g), if DWC has previously assigned a DD to the claim at the time a request is made, DWC will assign the same doctor to a subsequent examination for that claim unless DWC has authorized or required the doctor to stop providing services on the claim in accordance with 28 TAC Section 127.130.

28 TAC Section 127.5(c) provides that, except as provided in subsection (g) of this section (noted above), DWC will select the next available doctor on the DD list for a medical examination requested under 28 TAC Section 127.1 (relating to Requesting DD Examinations). A DD is available to perform an examination at any address the doctor has filed with DWC if the doctor:

(1) Does not have any disqualifying associations as described in 28 TAC Section 127.140 (relating to Disqualifying Associations).

(2) Is appropriately qualified to perform the examination in accordance with 28 TAC Section 127.130 (relating to Qualification Standards for Designated Doctor Examinations).

(3) Is certified on the day the examination is offered and has not failed to timely file for renewal under 28 TAC Section 127.100 (relating to Designated Doctor Certification), if applicable.

(4) Has not treated or examined the IE in a different health care provider role:

(A) Within the past 12 months; or

(B) For a medical condition being evaluated in the DD examination.

 Note: 28 TAC Section 127.5, subsections (c) and (g) went into effect on April 30, 2023.

Burden of Proof on the Party Challenging the DD's Appointment

The ALJ found that a second DD was improperly appointed. The ALJ correctly placed the burden of proof on the IC, which was the party challenging DWC's order appointing the second DD; however, the ALJ found that DWC abused its discretion in the appointment of the second DD. The AP reversed the ALJ'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 IE 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 DWC 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 ALJ found that the second DD was improperly appointed. The ALJ incorrectly placed the burden of proof on the IC and found that the IC did not establish that the first DD was unable or unwilling to continue as DD. However, the IE was the party challenging the appointment of the second DD; therefore, the IE had the burden to establish that the second DD was not properly appointed. Because the ALJ incorrectly placed the burden of proof on the IC, the AP reversed and remanded the case back to the ALJ to apply the correct burden of proof in considering the evidence presented at the CCH. APD 042979.

ALJ Erred in Designating Second DD

The IC requested that the ALJ take official notice of the DRIS notes in the claim, which was granted. The DRIS notes in the claim revealed no instances where the first appointed DD requested authorization to stop providing DD services, repeatedly failed to respond to DWC requests or met any of the other criteria under 28 TAC Section 127.130(f),(g) or (h) which would constitute an exception to the requirement in 28 TAC Section 127.5(d) that if DWC has previously assigned a designated doctor to the claim at the time a request is made, DWC shall use that doctor again. The ALJ requested a different DD because he was concerned that the first appointed DD “might take umbrage in being instructed that his opinion of extent was rejected.…” The AP reversed the ALJ’s decision that DWC properly designated the second DD to perform the extent-of-injury examination and determine MMI and IR and rendered a new decision that the second DD was not properly appointed. APD 160228.

ALJ Erred in Finding Improper Appointment of DD by DWC

A DD was appointed to address extent of injury, MMI, and IR on a claim based on a DWC-32 (Request for DD Examination) filed by the IE in December 2022. That request resulted in a DD examination on those issues being scheduled by DWC for February 2023. Based on a request by the IC, the examination was stayed and an expedited CCH was held on the issue of whether the DD was properly appointed under TLC Section 408.0041 and DWC rules. The ALJ resolved the issue by deciding that the DD was properly appointed under TLC Section 408.0041 and DWC rules on the issue of extent of injury, but not MMI and IR. The ALJ’s decision regarding the proper appointment of the DD for extent of injury was not appealed and became final under TLC Section 410.169. A previous MMI/IR examination by the DD had taken place in October 2022. The AP cited APD 160697-s, which stands for the proposition that, in determining whether a requested DD examination occurs within 60 days of a previous DD examination, the controlling date is the date of the actual subsequent examination, not the date the request is made. The AP wrote that the IC presented no evidence or authority to show DWC did not follow TLC Section 408.0041 and DWC rules in appointing the DD to serve as DD to address MMI and IR for the February 2023, examination. The AP reversed the ALJ’s decision and rendered a new decision that the DD was properly appointed to serve as the DD to address MMI and IR in accordance with Section 408.0041 and Division rules. APD 230546.

Note: APDs 042669-s, 042979, 160228, and 230546, cited above, contain references to versions of the DWC DD rules that were in effect during the time period applicable to those cases.

Incompleteness of ALJ Decision

TLC Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. 28 TAC Section 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due.

An ALJ’s omission of findings of fact, conclusions of law, and determinations on an issue properly before the ALJ to decide does not comply with TLC Section 410.168 and 28 TAC Section 142.16. APD 230368.

In addition, exceeding the scope of an issue properly before the ALJ is subject to reversal. APD 230369.

Interrogatories

The IE 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 IE's testimony and timely exchanged exhibits based on the IE's refusal to answer the interrogatories. The ALJ sustained the IC's objection and excluded the evidence and IE's testimony citing TLC Section 410.161. The AP reversed the ALJ's decision citing TLC Section 410.158, which states that "discovery . . . may not seek information that may readily be derived from documentary evidence described in [TLC] Section 410.160. Answers to discovery . . . need not duplicate information that may readily be derived from documentary evidence . . ." TLC Section 410.158(b). The AP remanded the case for the ALJ to admit and consider all exhibits which were properly and timely exchanged and to allow the IE 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 TAC 10.60 (Notice of Network Requirements; Employee Information). Texas Insurance Code Section 1305.005(d) and 28 TAC 10.60(a) state, in part, that the IC 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 IE with the information required under Texas Insurance Code Section 1305.451. The ALJ held that neither the IC nor the employer properly provided the information to the IE because the evidence did not establish that the information provided to the IE 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 IE signed a Workers’ Compensation Health Care Network Employee Acknowledgement Form and received an information packet titled Important Information for Employees Regarding Medical Treatment for a Work-Related Injury or Illness which contained all of the information required under Texas 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 IE on Page 2 of the information packet. Furthermore, 28 TAC Section 10.60(c)(3) (now 28 TAC Section 10.60(d)(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 IE requested a paper version from the IC or the employer. Since the evidence indicated that the information provided to the IE satisfied the requirements in Texas Insurance Code Section 1305.451, the AP reversed the ALJ’s determination that neither the IC nor the employer properly provided the information to the IE. 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 or her 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

TLC Section 410.164(c) requires the IC to file with the ALJ and deliver to the IE 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 Texas Insurance Code Art. 1.36, which was recodified 2001, effective June 1, 2003 as Texas Insurance Code Art. 804.102).

Address in Texas

An address for a registered agent outside of Texas for the registered agent does not meet the requirements of TLC Section 410.164(c). APD 210679.

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. See also APD 210561 and APD 210080.

Name of Registered Agent

The IC is required to provide the name of its registered agent for service of process on its carrier information form. See APD 210326, where the IC did not provide the name of its registered agent for service of process on the information form, only providing its own name.

Scope of 28 TAC 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 ALJ 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 28 TAC Section 124.3? The IE 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 ALJ 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 ALJ decided an issue not before her by incorporating IC waiver in her decision. The AP disagreed, noting that 28 TAC 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.

Employer as a Party in Dispute Resolution

TLC Section 409.011(b)(4) provides that an employer has the right to contest the compensability of an injury if the insurance carrier accepts liability for the payment of benefits. In APD 170773 the employer did not have standing to appeal the issues of extent of the compensable injury, MMI, and IR because the employer did not become a party to the CCH.

In APD 221776, the issue at the CCH was whether the employer was the IE’s employer for purposes of the TLC on a particular date; there was no issue of compensability of an injury sustained on that date, nor did the parties stipulate that the IC accepted liability for the payment of benefits for the injury. The employer filed an appeal to the AP of the ALJ’s decision, but the AP observed that the employer did not have standing to appeal the issue in the case because it did not become a party to the CCH. The AP held that the ALJ’s decision had become final under TLC Section 410.169, because a timely appeal had not been filed in the case.

Subclaimants

28 TAC 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 ALJ's decision on the issue of the extent of the IE's compensable injury and remanded the case to the ALJ 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 TLC Section 409.0091 or TLC Section 409.009. The subclaimant health care insurer had standing under TLC Section 409.009 because it indirectly provided compensation for the IE and it sought and was refused reimbursement from the IC. The authorized representative of the subclaimant health care insurer did not have standing under TLC Section 409.009 in that it did not meet the requirements of TLC Section 409.009 because the evidence did not establish that the authorized representative had provided compensation directly or indirectly to the IE. Under the facts of this case, TLC Section 409.0091 does not apply because: (1) the IE's DOI is prior to September 1, 2007; (2) the subclaimant was provided information under TLC Section 402.084(c-3) after January 1, 2007 (pertinent to the application of TLC 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 TLC Section 409.0091.) APD 081065-s. In APD 160721, the ALJ did not allow the subclaimant to participate in the CCH. The subclaimant alleged that it had rendered services to the IE for the compensable injury and sought reimbursement for those services. The subclaimant contended it was a party under TLC Section 409.009 and it should be allowed to participate in the CCH. The AP held that the ALJ failed to allow the subclaimant, a party in the case, to participate in the CCH and remanded the case to the ALJ to allow the subclaimant the opportunity to participate in the dispute resolution process. [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 TLC Section 409.0091. Under the facts of this case, the AP determined the subclaimant did not have standing under Section 409.0091 in that TLC Section 409.0091 did not apply because:

(1) The IE's DOI is prior to September 1, 2007;

(2) The subclaimant was provided information under TLC Section 402.084(c-3) after January 1, 2007 (pertinent to the application of TLC Section 409.0091(s));

(3) The self-insured had denied compensability of the claim; and

(4) DWC had determined that the IE did not have a compensable injury.

The AP held that as TLC Section 409.0091 does not apply, the subclaimant does not have legal standing to seek adjudication of the dispute under TLC 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 ALJ 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 ALJ's decision is received not counting Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code. TLC Section 410.202. The DWC must send the ALJ's decision to the IE and to the IE's representative, if any. The 15-day period does not begin until both the IE and the IE's representative, if any, receive the decision. 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 IE is deemed to receive the ALJ's decision not later than the 5th day after the date it is mailed by DWC. 28 TAC 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. 28 TAC 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 ALJ's decision on the first working day after the day the ALJ's decision is placed in the IC's Austin representative's box. 28 TAC 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 ALJ'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 DWC records show the mailing of the ALJ's decision to the IE 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 DWC rules. APD 041319. The parties have a duty to keep DWC apprised of their current addresses. APD 040299.

The party appealing the ALJ'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 28 TAC Section 143.3 if a party mails its appeal within 15 days after the party is deemed to have received the ALJ's decision and DWC receives the appeal or an identical copy of the appeal within 20 days after the party is deemed to have received the ALJ's decision. Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653 (Tex. App.—Dallas 2008, no pet.). There is no good cause exception to timely filing of an appeal. APD 010633.

Insufficiency of Appeal to AP

The IE filed with DWC a fax cover sheet that identified 9 pages were being sent along with the transmittal letter, a copy of the decision, and a document titled “You Have the Right to Appeal this Decision.” In a similar case, APD 160575, the AP held that the filing of an “Appeal Rights and Procedures” (brochure) is insufficient to constitute a request for appeal because it does not specify how or why a party disagrees with an ALJ’s decision. The AP also cited APD 94973, where it had explained that it had generally held that a simple written statement from an unrepresented IE that he or she thinks the ALJ was wrong and does not agree with the decision will be interpreted as a challenge to the sufficiency of the evidence, but that even those minimal filings it had accepted as appeals in the past indicated disagreement with the ALJ’s decision. The filing of the IE in the instant case did not state the grounds upon which review was requested and did not indicate disagreement with any portion of the ALJ’s decision. Though timely submitted, the filing of the copy of the decision along with the appeal rights document did not constitute the filing of a sufficient appeal and the time for filing an appeal has expired. Thus, the AP found that the ALJ’s decision became final under TLC Section 410.169. APD 221345.

For more information, contact: apdmanual@tdi.texas.gov