This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 19, 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 appellant (claimant) did not sustain a compensable injury on (date of injury); (2) the respondent (self-insured) did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Sections 409.021 and 409.022; and (3) the self-insured did specifically contest compensability on the issue of liability/compensability pursuant to Section 409.022 and 28 Tex. Admin. Code § 124.2(f) (Rule 124.2(f)). The claimant appealed, disputing the ALJ’s determinations. The self-insured responded, urging affirmance of the ALJ’s determinations. We note that both the claimant and the self-insured point out the ALJ’s decision contains incorrect dates. Specifically, Finding of Fact No. 7 incorrectly refers to the date of injury as November 30, 2021. Finding of Fact No. 9 incorrectly states the self-insured’s Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) is dated July 27, 2022. There is no PLN-1 from the self-insured dated July 27, 2022, in evidence.
DECISION
Affirmed in part and reversed and remanded in part.
The claimant testified that she was injured on (date of injury), while playing in a pickleball tournament held as part of a 20th anniversary celebration of the Office of Inspector General.
WAIVER
The ALJ’s determination that the self-insured did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Sections 409.021 and 409.022 are supported by sufficient evidence and affirmed. See Appeals Panel Decision (APD) 030663-s, decided May 1, 2003.
SPECIFICITY OF SELF-INSURED’S CONTEST OF COMPENSABILITY
In evidence is the self-insured’s initial PLN-1 dated April 18, 2024. The PLN-1 states the following regarding the self-insured’s reason for denial:
[the self-insured] denies this claim in its entirety. [The claimant] did not sustain an injury that arose out of the course and scope of employment. There was no instrumentality involved of [the] employer and her employment did not create a greater risk than the general public. After a thorough investigation, it has been determined that the claimant was not in the furtherance of the affairs or business of the employer at the time of the alleged injury. Therefore, the claimant has not established a causal connection between the alleged injury and her employment.
Also in evidence is a supplemental PLN-1 from the self-insured dated October 18, 2024. This PLN-1 states the self-insured is “amending the previous denial as new medical evidence has been received.” The PLN-1 added the following reasons, in part, for the self-insured’s denial:
[a]fter a thorough investigation, it has been determined pursuant to [Section] 406.032(1)(D) the claimant was not in the furtherance of the affairs or business of the employer at the time of the alleged injury because she was participating in a voluntary off-duty recreational event. . . .
Section 406.032(1)(D) provides that an insurance carrier is not liable for compensation if the injury “arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the employee’s work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment.” The Appeals Panel has held that the exceptions listed in Section 406.032, which include participation in an off-duty recreational, social, or athletic activity, must be raised by the insurance carrier as an affirmative defense. Section 409.022(a) provides that an insurance carrier’s notice of refusal to pay benefits under Section 409.021 must specify the grounds for refusal, and pursuant to Section 409.022(b) the grounds for the refusal specified in the notice constitute the only basis for the insurance carrier’s defense unless the defense is based on newly discovered evidence. See Texas Workers’ Compensation Fund v. Simon, 980 S.W.2d 730, (Tex. App.—San Antonio 1998, no pet.). The Appeals Panel has held that generally the insurance carrier is limited to and bound by the grounds set forth in the initial PLN-1 it files, unless the new defense is based on newly discovered evidence. See APD 101449, decided December 13, 2010, and cases cited therein.
In the case on appeal the self-insured’s initial PLN-1 dated April 18, 2024, did not raise the defense listed in Section 406.032(1)(D), and it was not until the self-insured’s supplemental PLN-1 dated October 18, 2024, that this defense was raised. The self-insured in this case was limited to the defenses stated in its initial April 18, 2024, PLN-1, unless the self-insured’s Section 406.032(1)(D) defense raised in the October 18, 2024, PLN-1 is based on newly discovered evidence. The ALJ made no findings of fact or discussed whether the self-insured’s defense is based on newly discovered evidence. We reverse the ALJ’s determination that the self-insured did specifically contest compensability on the issue of liability/compensability pursuant to Section 409.022 and Rule 124.2(f). We remand this issue to the ALJ to make findings of fact, conclusions of law, and a decision whether the defense listed in the self-insured’s October 18, 2024, PLN-1 is based on newly discovered evidence.
COMPENSABLE INJURY
The ALJ determined that the claimant did not sustain a compensable injury on (date of injury), based on the self-insured’s Section 406.032(1)(D) defense that the injury arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the employee’s work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment, which was raised in the self-insured’s October 18, 2024, PLN-1. Given that we have reversed and remanded this case for the ALJ to make findings of fact, conclusions of law, and a decision whether the defense listed in the self-insured’s October 18, 2024, PLN-1 is based on newly discovered evidence, we also reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury). We remand the issue of whether the claimant sustained a compensable injury on (date of injury), to the ALJ for further action consistent with this decision.
SUMMARY
We affirm the ALJ’s determination that the self-insured did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Sections 409.021 and 409.022.
We reverse the ALJ’s determination that the self-insured did specifically contest compensability on the issue of liability/compensability pursuant to Section 409.022 and Rule 124.2(f) and remand this issue to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and remand this issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand the ALJ is to make a determination whether the Section 406.032(1)(D) defense raised in the self-insured’s October 18, 2024, PLN-1 is based on newly discovered evidence. The ALJ is then to determine whether the self-insured specifically contested compensability on the issue of liability/compensability pursuant to Section 409.022 and Rule 124.2(f), and whether the claimant sustained a compensable injury on (date 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 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.
According to the information in evidence, the true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is
For service in person the address is:
STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR
300 WEST 15TH STREET, 6TH FLOOR
AUSTIN, TEXAS 78701.
For service by mail the address is:
STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR
P.O. BOX 13777
AUSTIN, TEXAS 78711-3777.
Carisa Space-Beam
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Margaret L. Turner
Appeals Judge