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At a Glance:
Title:
APD 162054
Date:
December 12, 2016

APD 162054

December 12, 2016

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 May 26, 2016, and continued on August 1, 2016, with the record closing on August 23, 2016, in (city), Texas, with (hearing officer)., presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) (AEP) was not respondent 1’s (claimant) employer for purposes of the Texas Workers’ Compensation Act; (2) appellant (carrier 1) provided workers’ compensation insurance for AEP on (date of injury); (3) respondent 2 (carrier 2) did not provide workers’ compensation insurance for AEP on (date of injury); (4) the claimant did not sustain a compensable injury on (date of injury); and (5) the claimant did not have disability resulting from an injury sustained on (date of injury), from (date of injury), through the date of the CCH. The hearing officer made clear in his decision that his compensability and disability determinations were based on his determination that the claimant was not an employee of AEP on (date of injury).

Carrier 1 appealed the hearing officer’s determination that it provided workers’ compensation insurance for AEP on (date of injury), contending that the hearing officer erred in making that determination. The claimant responded, urging affirmance. The appeal file does not contain a response from carrier 2 to carrier 1’s appeal.

DECISION

Reversed and remanded.

The claimant testified he was injured on (date of injury), while working in a cooling tower. The claimant testified he fell approximately 36 feet while tearing down a scaffold. We note that the decision incorrectly states Claimant’s Exhibits C-1 through C-7 were admitted, when in fact Claimant’s Exhibits C-1 through C-8 were admitted at the CCH.

As noted by the hearing officer in his decision, the claimant’s testimony indicated that another party, (BES), was a potential employer in this case. The hearing officer noted that several attempts were made to contact BES to no avail, and that the parties elected at the August 1, 2016, CCH to proceed without BES. The hearing officer discussed BES in the Discussion portion of his decision, and determined that because AEP did not maintain a right of control over the claimant on (date of injury), AEP was not the claimant’s employer on that date. The evidence is incomplete regarding the claimant’s correct employer on the (date of injury), date of injury, and any potential carrier that may have provided workers’ compensation insurance. Because of the uncertainty as to the identity of the proper employer and carrier in this case, we remand the case to the hearing officer to determine the proper employer and carrier. The hearing officer is to hold another hearing and ensure that the proper employer and carrier is present at the CCH. On remand, the hearing officer shall take official notice of the Texas Department of Insurance, Division of Workers’ Compensation (Division) records regarding the proper employer and carrier in this case. The parties are to be allowed an opportunity to present evidence as to the correct employer and carrier and the issues in this proceeding.

SUMMARY

On remand, the hearing officer shall take official notice of the Division records regarding the proper employer and carrier in this case.  The hearing officer is to hold another hearing with the proper employer and carrier present at the CCH.  The parties are to be allowed an opportunity to present evidence as to the correct employer and carrier.  The hearing officer is to determine the proper employer and carrier in this case, and then make findings of fact, conclusions of law, and a decision as to whether the claimant sustained a compensable injury on (date of injury), and whether the claimant had disability resulting from an injury sustained on (date of injury), and if so for what periods.

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  Division, 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.  See Appeals Panel Decision 060721, decided June 12, 2006.

According to information provided by carrier 1, the true corporate name of the insurance carrier is EVEREST NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

According to information provided by carrier 2, the true corporate name of the insurance carrier is SUNZ INSURANCE COMPANY and the name and address of its registered agent for service of process is

NATIONAL R AGENTS, INC.

16055 SPACE CENTER BOULEVARD, SUITE 235

HOUSTON, TEXAS 77062.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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