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 July 2, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the compensable injury of [date of injury], does not include an injury to the left shoulder diagnosed as a rotator cuff tear. The appellant (claimant) appealed, disputing the hearing officer’s extent-of-injury determination. The claimant also contended that the hearing officer’s actions following the CCH were unprofessional and biased against the claimant. The respondent (carrier) responded, urging affirmance of the disputed extent-of-injury determination.
DECISION
Reversed and remanded.
The parties stipulated that the claimant sustained a compensable injury on [date of injury].
The claimant contends that immediately following the CCH, the hearing officer and the carrier’s attorney were alone in the hearing officer’s “CCH room,” engaging in conversation of unknown subject matter, for at least 30 minutes.
Section 410.163(b) provides that a hearing officer “shall ensure the preservation of the rights of the parties and the full development of facts required for the determination to be made.” A hearing officer must not depart from the role of an unbiased and impartial fact finder. See Appeals Panel Decision (APD) 972163, decided December 8, 1997; APD 052163, decided November 1, 2005.
A review of the record reflects the CCH and a portion of the post-CCH proceedings were recorded on a compact disc (CD). The length of the CCH is 50 minutes and 50 seconds, at which time the CCH was adjourned and the claimant and his ombudsman left the hearing officer’s “CCH room.” The remaining 6 minutes and 75 seconds reflect that the hearing officer and carrier’s attorney remained alone and engaged in a friendly, personal exchange until the hearing officer stated he needed to shut the CD off, while continuing to converse with the carrier’s attorney.
Regardless of the nature or substance of the private conversation between the hearing officer and the carrier’s attorney, the hearing officer we believe, engaged in conduct which, at a minimum, compromised the appearance of impartiality required of all hearing officers. APD 941146, decided October 7, 1994. This exchange could be perceived as bias on his part against the claimant’s claim and may have been reflected in his decision on the merits. To insure a fair and impartial hearing for the claimant, we reverse the decision of the hearing officer and remand this case for a new hearing conducted by another hearing officer.
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 Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202, which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.
The true corporate name of the insurance carrier is AMERICAN ZURICH INSURANCE COMPANY and the name and address of its registered agent for service of process is
LEO F. MALO
12222 MERIT DRIVE, SUITE 700
DALLAS, TEXAS 75251.
Cynthia A. Brown – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Margaret L. Turner – Appeals Judge