This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 22, 1996, in (city), Texas, with (hearing officer) presiding as hearing officer. The issue at the CCH was whether the appellant’s (claimant herein) back injury extended to her left knee. The hearing officer found that the claimant’s injury did not extend to her left lower extremity and that the claimant did not have good cause for failing to attend the CCH. The claimant appeals challenging these findings and arguing that she deserves “to have my side of the case heard.” The respondent (carrier herein) replies that the evidence supported the findings of the hearing officer.
DECISION
Reverse and remanded.
The claimant did not appear at the CCH. The carrier presented its evidence. The hearing officer announced that he would inquire whether the claimant had good cause for failing to appear and if she did not, he would close the record and determine the merits of the case based upon the evidence presented at the CCH. After the CCH, the hearing officer wrote a letter dated August 22, 1996, to the claimant which stated in part as follows:
The hearing record was opened, developed, and closed at the hearing. A proposed decision and order based on the hearing has been prepared that is adverse to you. You may contact this [Texas Workers’ Compensation Commission] Commission office within ten days of the date of this letter to request that the contested case hearing in this matter be reconvened to permit you to present evidence on the issue, and to show good cause why you failed to attend the [CCH].
The claimant sent a letter to the hearing officer within 10 days of his letter stating that she had shown up for the hearing at 3:00 p.m. on the day of the CCH, which is the time her records reflect the hearing was scheduled, and was told that the time of the hearing was 1:00 p.m. The claimant requested that the hearing officer set her case for hearing to allow her to prove the extent of her injury.
On September 3, 1996, the hearing officer wrote to the claimant stating in part as follows:
Your letter received by us on August 28, 1996, indicates that you have records reflecting a Hearing time of 3:00 P.M. on August 22, 1996. Before ruling on the issue of good cause for missing the Hearing, I would like to see your records. Please respond promptly providing copies of such records.
The hearing officer recites in his decision that he had not received a response to this letter.
We will not discuss the merits of the extent of injury because this case must be remanded. First, the hearing officer may have confused the relationship of good cause for failure to appear determinations with the claimant’s right to be heard. We have previously held that the failure to establish good cause does not cut off the right to be heard, but goes solely to whether or not the claimant may have committed an administrative violation. See Texas Workers’ Compensation Commission Appeal No. 941579, decided February 6, 1995; Texas Workers’ Compensation Commission Appeal No. 950044, decided February 21, 1995; Texas Workers’ Compensation Commission Appeal No. 951209, decided September 7, 1995; Texas Workers’ Compensation Commission Appeal No. 951275, decided September 18, 1995; Texas Workers’ Compensation Commission Appeal No. 960464, decided April 22, 1996; Texas Workers’ Compensation Commission Appeal No. 961314, decided August 21, 1996.
As to the good cause determination itself, we are in a quandary as to why the hearing officer did not set this matter for a show cause hearing to determine whether or not the claimant had good cause for her failure to appear rather than corresponding with her. It appears to us unlikely that the claimant would have any correspondence from the Commission, which is not reflected in the Commission’s file. The claimant’s plea of good cause appears to be based upon a mistake on her part concerning the time of the hearing. A good faith error on the part of the claimant as to the time of the hearing could constitute good cause for failure to appear, even where here, as the hearing officer points out, it is clear the claimant was informed of the correct time. See generally Texas Workers’ Compensation Commission Appeal No. 960040, decided February 20, 1996. Determining whether this was the case would require judging the claimant’s credibility, which would best be accomplished by hearing her personally.
We therefore reverse and remand this case to the hearing officer to set for a show cause hearing on the claimant’s failure to appear and for another CCH to provide an opportunity for claimant to present evidence on the merits of the disputed issue of extent of injury.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision
is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Gary L. Kilgore – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Christopher Rhodes – Appeals Judge