This appeal after remand 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 December 19, 2024, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). That hearing resulted in Appeals Panel Decision (APD) 250174, decided March 31, 2025, and was remanded to the ALJ to make a determination whether the Section 406.032(1)(D) defense raised in the respondent’s (self-insured) October 18, 2024, Notice of Denial of Compensability/ Liability and Refusal to Pay Benefits (PLN-1) was based on newly discovered evidence. The ALJ was also to determine whether the self-insured specifically contested compensability on the issue of liability/compensability pursuant to Section 409.022 and 28 Tex. Admin. Code § 124.2(f) (Rule 124.2(f)), and whether the appellant (claimant) sustained a compensable injury on (date of injury). We note that 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 was supported by sufficient evidence and affirmed in APD 250174.
After the ALJ’s decision was issued the ALJ resigned from the Texas Department of Insurance, Division of Workers’ Compensation and the case was assigned to (administrative law judge) (ALJ 2). No further hearing was held on remand. ALJ 2 issued a Decision and Order on Remand in which he determined that: (1) the claimant did not sustain a compensable injury on (date of injury); and (2) the self-insured did not specifically contest compensability on the issue of liability/compensability pursuant to Section 409.022 and Rule 124.2(f).
The claimant appealed, disputing ALJ 2’s determinations. We note the claimant also appealed the determination that the self-insured did not waive the right to contest compensability in accordance with Sections 409.021 and 409.022, that was affirmed in APD 250174. The self-insured responded, urging affirmance of ALJ 2’s compensability determination. The self-insured also requested a clerical correction regarding ALJ 2’s determination that the self-insured did not specifically contest compensability on the issue of liability/compensability pursuant to Section 409.022 and Rule 124.2(f).
DECISION
Reversed and rendered.
Pursuant to Section 410.203(c) the Appeals Panel may not remand a case to an ALJ more than once. Accordingly, based on the evidence in the record before us, we will resolve the disputed issues. The claimant testified at the December 19, 2024, CCH 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.
SPECIFICITY OF SELF-INSURED’S CONTEST OF COMPENSABILITY
It is undisputed that the self-insured filed PLN-1s on April 22, 2024, and October 18, 2024, disputing the (date of injury), claimed injury. The evidence established that the April 22, 2024, PLN-1 was timely filed as a dispute but the October 18, 2024, PLN-1 was not. ALJ 2 found that the defense raised in the October 18, 2024, PLN-1 is not based on newly discovered evidence that could not reasonably have been discovered at an earlier date. This finding is supported by the evidence.
ALJ 2 also found that the PLN-1 filed on April 22, 2024, was specific enough to comply with Section 409.022 and Rule 124.2(f) to dispute compensability. This finding is also supported by the evidence. However, despite this finding ALJ 2 determined that the self-insured did not specifically contest compensability on the issue of liability/compensability pursuant to Section 409.022 and Rule 124.2(f). ALJ 2’s determination is contrary to his finding that the PLN-1 filed on April 22, 2024, was specific enough to comply with Section 409.022 and Rule 124.2(f) to dispute compensability and is legal error. Accordingly, we reverse the ALJ’s determination that the self-insured did not specifically contest compensability on the issue of liability/compensability pursuant to Section 409.022 and Rule 124.2(f) and render a new decision that the self-insured did specifically contest compensability on the issue of liability/compensability pursuant to Section 409.022 and Rule 124.2(f).
SELF-INSURED’S DISPUTE AND COMPENSABLE INJURY
The PLN-1 filed on October 18, 2024, stated 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. . . .
ALJ 2 found that the grounds for the refusal specified in the first PLN-1 filed on April 22, 2024, constitute the only basis for the self-insured’s defense on the issue of compensability, unless the defense is based on newly discovered evidence that could not reasonably have been discovered at an earlier date pursuant to Section 409.022(b). As previously discussed, ALJ 2’s finding that that the defense raised in the October 18, 2024, PLN-1 is not based on newly discovered evidence that could not reasonably have been discovered at an earlier date is supported by the evidence. Therefore, the only basis on which the self-insured disputed compensability is the defense raised in the PLN-1 filed on April 22, 2024, which was the following:
[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.
In APD 101449, decided December 13, 2010, the carrier’s initial PLN-1 asserted a general defense by stating it was disputing the compensability of the claimed injury. The carrier stated in this PLN-1 that its investigation revealed the employee injured his right ankle/leg while working on the roof of his home, so it “[disputed] the injury occurred in the course and scope of his employment.” The carrier later filed a supplemental PLN-1 stating if the employee was injured at work “it is because the employee’s horseplay was a producing cause of the injury.” The Appeals Panel noted that generally a carrier is limited to and bound by the grounds set forth in the PLN-1 it files, unless the new defense is based on newly discovered evidence, and that the exceptions listed in Section 406.032, which includes horseplay, must be raised by the carrier as an affirmative defense. The Appeals Panel affirmed the ALJ’s decision that there was no good cause for a contest of compensability based on newly discovered evidence that could not have reasonably been discovered earlier. Therefore, the carrier was limited to its initial defense and could not rely on the subsequently filed affirmative defense of horseplay. However, despite finding that there was no good cause for a contest of compensability based on newly discovered evidence that could not have reasonably been discovered earlier, which was the affirmative defense of horseplay, the ALJ determined that the claimant’s horseplay was a producing cause of the claimed injury, thereby relieving the carrier of liability for compensation, and determined the claimant sustained a compensable injury. The Appeals Panel reversed and rendered a new decision that the claimant’s horseplay was not a producing cause of the claimed injury because the carrier was limited to the defenses set forth in its initial PLN-1, thus the carrier is not relieved of liability for compensation, and the claimant did sustain a compensable injury.
In the case on appeal ALJ 2 noted in his discussion that there were multiple notices, flyers, and surveys from April 2024, as well as information related to the events, which included the pickleball tournament, that were part of the 20th Anniversary Celebration. ALJ 2 further noted the fact that the claimant participated in the pickleball tournament was discoverable soon after the injurious event, and that the evidence did not support the October 18, 2024, PLN-1 was filed based on newly discovered evidence. However, ALJ 2 also stated the following:
The documentary evidence indicated the employer sent a survey to 537 employees and approximately 28 responded that they wanted to play pickleball and were added as participants in the event at the Office of Inspector General 20th Anniversary Celebration. The employees were given the chance to respond and to sign up, but they were not required to respond to the survey or participate in events, including pickleball.
On (date of injury), the day of the injury event, the employees who were present at the venue for morning activities, could remain at the (Activity Center) after 12:15 p.m. Testimony supported the employees could stay for lunch, participate in pickleball, remain as spectators, or leave, but they did not have to return to work.
The parties offered conflicting evidence relative to the event and attendance. Based on the evidence presented, the claimant did not sustain an injury that arose out of and in the course and scope of her employment on (date of injury), and the claimed injury is not compensable.
We have affirmed the ALJ’s finding that the defense raised in the October 18, 2024, PLN-1, is not based on newly discovered evidence that could not reasonably have been discovered at an earlier date. Therefore, the affirmative defense in Section 406.032(1)(D) 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 is not available to the self-insured and cannot be applied. ALJ 2’s discussion reflects that he determined the claimant did not sustain a compensable injury based on his analysis that the claimant’s injury arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of her work-related duties. Accordingly, we reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and render a new decision that the claimant did sustain a compensable injury on (date of injury).
SUMMARY
We reverse the ALJ’s determination that the self-insured did not specifically contest compensability on the issue of liability/compensability pursuant to Section 409.022 and Rule 124.2(f) and render a new decision 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 reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and render a new decision that the claimant did sustain a compensable injury on (date of injury).
According to the information in evidence, the true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (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