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 September 10, 2024, with the record closing on September 11, 2024, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to a right shoulder symptomatic labral tear of posterior/superior quadrant superior labrum and superior labrum anterior to posterior (SLAP) tear; (2) the respondent (claimant) has not reached maximum medical improvement (MMI); and (3) because the claimant has not reached MMI, an impairment rating (IR) cannot yet be determined.
The appellant (carrier) appealed, disputing the ALJ’s extent-of-injury, MMI, and IR determinations. The carrier contends, in part, that the ALJ erred because she failed to allow the carrier time to review and respond to new evidence submitted after the CCH, specifically an operative report admitted into evidence as ALJ’s exhibit 2. The carrier attached to its appeal a peer review addendum from (Dr. B) which specifically considers the extent-of-injury conditions addressed in the operative report. The claimant responded, urging affirmance of the appealed determinations.
DECISION
Reversed and remanded.
The parties stipulated, in part, that: the claimant sustained a compensable injury on (date of injury), that extends to at least a right shoulder strain; and that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. H) as the designated doctor to address the extent of injury, MMI, and IR. The claimant testified she was injured when she helped stabilize a patient to prevent him from falling as he was standing with assistance from a wheelchair.
An ALJ shall ensure the preservation of the rights of the parties and the full development of facts required for determinations to be made. Section 410.163(b). At the conclusion of the CCH, the ALJ requested that the claimant submit a copy of an operative report for the claimant’s right shoulder, which was not introduced into evidence at the CCH. The carrier requested that it be allowed to respond to the new evidence and the ALJ stated that the record would be left open to allow the parties to review, comment on, and object to any new evidence offered before the ALJ wrote a decision. On September 11, 2024, the ALJ admitted into evidence a copy of the operative report dated June 3, 2024, as ALJ exhibit 2 without allowing the parties an opportunity to review, object to, or respond to the new evidence.
In an administrative hearing, due process means that parties be afforded a full and fair hearing on disputed fact issues. Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 802 (Tex. App.-Austin 2008, no pet.) citing City of Corpus Christi v. Pub. Util. Comm’n, 51 S.W.3d 231, 238 (Tex. 2001). A full and fair hearing includes the right to review, object to, and provide rebuttal evidence to any evidence admitted by the judge. See id. The reviewing court must find that the error “probably prevented the appellant from properly presenting the case [on appeal].” G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam). In this case, the carrier argued that it obtained rebuttal evidence it sought to offer before the record closed based on the ALJ’s representations at the CCH. Specifically, the carrier obtained a peer review addendum that considered relevant extent-of-injury conditions addressed in the operative report. The carrier provided a copy of the peer review report as part of its appeal. The ALJ in this case erred by failing to provide an opportunity for the parties to respond to the new evidence, and the ALJ’s error deprived the carrier of a full and fair hearing that amounts to reversible error.
Accordingly, we reverse the ALJ’s determinations and remand the extent-of-injury, MMI, and IR issues to the ALJ for further consideration, to establish a complete record, and for further proceedings consistent with this decision.
SUMMARY
We reverse the ALJ’s determination that the compensable injury of (date of injury), extends to a right shoulder symptomatic labral tear of posterior/superior quadrant superior labrum and SLAP tear and remand the extent-of-injury issue to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant has not yet reached MMI and remand the MMI issue to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that since the claimant has not yet reached MMI, an IR cannot be determined and remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand the ALJ is to allow the parties to respond to the operative report and any newly submitted evidence and/or submission of closing arguments from the parties. The ALJ is to rule on the admissibility of the operative report and any further evidence offered by the parties. The ALJ is to consider all the evidence in the record and make a decision on the disputed issues of extent of injury, MMI, and IR.
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 ALJ, 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 APD 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is TEXAS HOSPITAL INSURANCE EXCHANGE and the name and address of its registered agent for service of process is
TESS FRAZIER, PRESIDENT/CEO/CFO
4849 WILLIAMS DRIVE
GEORGETOWN, TEXAS 78633.
Margaret L. Turner – Appeals Judge
CONCUR:
Cristina Beceiro – Appeals Judge
Carisa Space-Beam – Appeals Judge