Appearance at CCH/10-Day Letter.
When a party fails to appear for a CCH, the HO will send a letter, known as a 10-day letter, notifying the absent party that it may contact the Division within 10 days following the date of the letter and request that the CCH be reconvened to permit the party to present evidence on the issue or issues and show cause why it failed to attend the CCH. The purpose of the 10-day letter is to give the nonappearing party the opportunity to meaningfully participate in the dispute resolution process. APD 071706. If the party fails to respond to the 10-day letter within the 10-day period prescribed in the letter the HO will issue a decision.
HO's Failure to Issue 10-Day Letter.
The HO failed to issue a 10-day letter after the first failure of the attorney to appear and issued a decision that the attorney was not entitled to fees. The attorney appealed and the AP remanded the case to the HO to send a 10-day letter. The HO relied on the remand notice issued by the Hearings Division, which set a specific date for the CCH, and did not send a 10-day letter. None of the parties appeared at the CCH on remand and the HO issued another decision that the attorney was not entitled to fees. The AP reversed and rendered a decision that the procedure was not followed and the fees could not be determined. APD 033116-s.
Appointment of a DD.
Abuse of Discretion.
Appointment of a Subsequent DD.
An abuse of discretion occurs when an action is taken without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The AP has applied an abuse of discretion standard to the appointment of a second DD. APD 030467. Section 126.7(h) provides as follows:
(h) If at the time the request [for a DD] is made, the Division has previously assigned a [DD] to the claim, the Division shall use that doctor again, if the doctor is still qualified and available. Otherwise, the Division shall select the next available doctor on the Division's [DD] List (DDL) who:
(1) has not previously treated or examined the employee within the past 12 months and has not examined or treated the employee with regard to a medical condition being evaluated in the [DD] examination;
(2) does not have any disqualifying associations as described in [Section] 180.21 of this title (relating to Division [DDL]); and
(3) has credentials appropriate to the issue in question and the employee's medical condition.
Burden of Proof on the Party Challenging the DD's Appointment.
The HO found that a second DD was improperly appointed. The HO correctly placed the burden of proof on the IC, which was the party challenging the Division's order appointing the second DD; however, the HO found that the Division abused its discretion in the appointment of the second DD. The AP reversed the HO's determination that the second DD was improperly appointed and rendered a decision that, based on the evidence, the second DD was properly appointed. In this case, the only evidence regarding why a second DD was appointed is a DRIS note reflecting that the IW would have to be sent to a different DD because the initial DD could not meet the time frame for setting up a DD appointment. Therefore, there was no showing by the IC that the Division abused its discretion in appointing the second DD. The AP stated that an order of an administrative body is presumed to be valid and that the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action, citing Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref'd). APD 042669-s.
The HO found that the second DD was improperly appointed. The HO incorrectly placed the burden of proof on the IC and found that it was not established by the IC that the first DD was unable or unwilling to continue as DD. However, the IW was the party challenging the appointment of the second DD, therefore the IW had the burden to establish that the second DD was not properly appointed. Because the HO incorrectly placed the burden of proof on the IC, the AP reversed and remanded the case back to the HO in order to apply the correct burden of proof in considering the evidence presented at the CCH. APD 042979.
Not an Abuse of Discretion.
The Division's use of the matrix in determining whether a DD's credentials are appropriate for the issue in question and the IW's medical condition is not an abuse of discretion. APD 081398-s.
HO Omission of Issue in Decision and Order.
A HO's decision and order that fails to make a finding of fact, conclusion of law, or a decision on an issue included in the BRC report, agreed to by the parties at the CCH, and not withdrawn by or agreed to a resolution by the parties is considered incomplete and will be reversed and remanded for the HO to make a determination on the omitted issue. APD 090397.
The IW received interrogatories from the IC and objected to the form of the question. The IC did not file a motion to compel. At the CCH the IC objected to all of the IW's testimony and timely exchanged exhibits based on the IW's refusal to answer the interrogatories. The HO sustained the IC's objection and excluded the evidence and IW's testimony citing Section 410.161. The AP reversed the HO's decision citing Section 410.158, which states that "discovery . . . may not seek information that may readily be derived from documentary evidence described in Section 410.160. Answers to discovery . . . need not duplicate information that may readily be derived from documentary evidence . . ." Section 410.158(b). The AP remanded the case for the HO to admit and consider all exhibits which were properly and timely exchanged and to allow the IW to testify. APD 002932-s.
Notice of Network Requirements.
Proper notice of network requirements can be found under Texas Insurance Code Section 1305.005 (Participation In Network; Notice of Network Requirements) and 28 TEX. ADMIN. CODE § 10.60 (Notice of Network Requirements; Employee Information). Section 1305.005(d) and Rule 10.60(a) state, in part, that the insurance carrier shall provide to the employer, and the employer shall provide to the employer's employees, notice of network requirements, including all information required by Section 1305.451.
In APD 132919, the issue was whether the IC or the employer properly provided the IW with the information required by Texas Insurance Code Section 1305.451. The HO held that neither the IC nor the employer properly provided the information to the IW because the evidence did not establish that the information provided to the IW contained a list of network providers as required in Insurance Code Section 1305.451(b)(12). However, the AP noted the evidence established that on the date of hire, the IW signed a Workers’ Compensation Health Care Network Employee Acknowledgement Form and received an information packet entitled Important Information for Employees Regarding Medical Treatment for a Work-Related Injury or Illness which contained all of the information required by Insurance Code Section 1305.451. The AP further stated that the evidence showed that an electronic link to the provider list was provided to the IW on page two of the information packet. Furthermore, 28 TEX. ADMIN. CODE § 10.60(c)(3) (Rule 10.60(c)(3)) provides that the notice of network requirements may be in an electronic format provided a paper version is available upon request. The evidence did not indicate that the IW requested a paper version from the IC or the employer. Since the evidence indicated that the information provided to the IW satisfied the requirements in Insurance Code Section 1305.451, the AP reversed the HO’s determination that neither the IC nor the employer properly provided the information to the IC. To the extent that any prior cases held to the contrary, they are superseded by this decision.
Presumption of Administrative Regularity.
An order of an administrative body is presumed to be valid and the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action. Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref'd); APD 042669-s.
In the absence of proof to the contrary, there is the presumption that every public official will discharge duties imposed on him by law. Sanchez v. Tex. Indus., Inc., 485 S.W.2d 385 (Tex. Civ. App.-Waco 1972, writ ref'd n.r.e.).
Required IC Information at the CCH.
Section 410.164(c) requires the IC to file with the HO and deliver to the IW a single document stating the true corporate name of the IC and the name and address of the IC's registered agent for service of process. This document is part of the CCH record. APD 011533-s.
An IC is required to provide a physical address of a registered agent for service of process in Texas. APD 011845-s. (Please note that APD 011845-s discussed TEX. INS. CODE ANN. Art. 1.36, which was recodified 2001, effective June 1, 2003 as TEX. INS. CODE ANN. Art. 804.102).
The address provided for the registered agent was a post office box, where personal service of process could not be effectuated. A street address for the registered agent is required. APD 011758-s.
Scope of Section 124.3 as an Issue at the CCH.
[Cross-reference: Timely Contest by Carrier (C03)]
At the CCH on remand the issues before the HO were (1) who is the correct IC for the DOI and (2) does the IC have liability for benefits prior to the date the IC filed notice of denial pursuant to Section 124.3. The IW requested to add an issue of IC waiver of the claimed injury but the attorney representing both ICs at the CCH objected on the grounds that an IC waiver issue had not previously been raised. The HO declined to add the issue, and determined the correct IC and that the correct IC waived the right to contest compensability of or liability for the claimed injury because the IC failed to file a denial within 60 days of receiving first written notice of the injury. The IC appealed and argued that the HO decided an issue not before her by incorporating IC waiver in her decision. The AP disagreed, noting that Section 124.3 covers both IC liability for accrued benefits for failure to dispute by the 15th day after receiving first written notice of the claimed injury as well as IC waiver of the right to contest compensability of the claimed injury if not disputed on or before the 60th day after receiving first written notice of the claimed injury pursuant to Section 124.3(b). APD 081665-s.
Section 409.011(b)(4) provides that an employer has the right to contest the compensability of an injury if the insurance carrier accepts liability for the payment of benefits. In APD 170773 the employer did not have standing to appeal the issues of extent of the compensable injury, MMI, and IR because the employer did not become a party to the CCH.
Section 140.1(4) defines "party to a proceeding" as a person entitled to take part in a proceeding because of a direct legal interest in the outcome. The AP reversed the HO's decision on the issue of the extent of the IW's compensable injury and remanded the case to the HO because a subclaimant was added as a party before the CCH record closed, but the subclaimant was not given notice of the CCH. The subclaimant had a direct legal interest in the outcome of the case but was not given the opportunity to participate in the dispute resolution process on the disputed extent of injury issue. APD 070647-s.
Standing is defined as "a party's right to make a legal claim or seek judicial enforcement of a duty or right." (Black's Law Dictionary, 7th edition). The general test for standing in Texas requires that there "(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought." See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993), citing Bd. of Water Eng'r v. City of San Antonio, 283 S.W.2d 722, 724 (Tex. 1955).
Subclaimant Under Section 409.009.
The issues of standing as a subclaimant for both the health care insurer and the authorized representative of the health care insurer were broadly worded and were not limited to the application of either Sections 409.0091 or 409.009. The subclaimant health care insurer had standing under Section 409.009 because it indirectly provided compensation for the IW and it sought and was refused reimbursement from the IC. The authorized representative of the subclaimant health care insurer did not have standing under Section 409.009 in that it did not meet the requirements of Section 409.009 because the evidence did not establish that the authorized representative had provided compensation directly or indirectly to the IW. Under the facts of this case, Section 409.0091 does not apply because: (1) the IW's DOI is prior to September 1, 2007; (2) the subclaimant was provided information under Section 402.084(c-3) after January 1, 2007 (pertinent to the application of Section 409.0091(s)); and (3) the self-insured had denied compensability of the claim. (See APD 080576-s for a discussion of the applicability of Section 409.0091.) APD 081065-s. In APD 160721, the HO did not allow the subclaimant to participate in the CCH. The subclaimant alleged that it had rendered services to the IW for the compensable injury and sought reimbursement for those services. The subclaimant contended it was a party under Section 409.009 and it should be allowed to participate in the CCH. The AP held that the HO failed to allow the subclaimant, a party in the case, to participate in the CCH and remanded the case to the HO to allow the subclaimant the opportunity to participate in the dispute resolution process.
[Cross reference: Jurisdiction (P03)].
Subclaimant Under Section 409.0091.
One of the issues at the CCH was whether the subclaimant, a health care insurer, has legal standing to seek adjudication of the dispute pursuant to section 409.0091. Under the facts of this case the AP determined the subclaimant did not have standing under Section 409.0091 in that Section 409.0091 did not apply because: (1) the IW's DOI is prior to September 1, 2007; (2) the subclaimant was provided information under Section 402.084(c-3) after January 1, 2007 (pertinent to the application of Section 409.0091(s)); (3) the self-insured had denied compensability of the claim; and (4) the Division had determined that the IW did not have a compensable injury. The AP held that as Section 409.0091 does not apply, the subclaimant does not have legal standing to seek adjudication of the dispute under Section 409.0091. The AP made no determination regarding whether the subclaimant had standing as a subclaimant under Section 409.009 because that was not an issue before the HO and it was not litigated. APD 080576-s.
[Cross reference: Jurisdiction (P03)].
Timeliness of Appeal to AP.
A written appeal must be filed with the AP on or before the 15th day after the HO's Decision and Order is received not counting Saturdays and Sundays and holidays listed in Texas Government Code Section 662.003. Section 410.202. The Division must send the HO's Decision and Order to the IW and to the IW's representative, if any. The 15-day period does not begin until both the IW and the IW's representative, if any, receive the Decision and Order. Frank v. Liberty Ins. Corp., 255 S.W.3d 314 (Tex. App.-Austin 2008, pet. denied). Unless the great weight of evidence indicates otherwise, an IW is deemed to receive the HO's Decision and Order not later than the 5th day after the date it is mailed by the Division. Sections 102.5(d) and 143.3(d)(1). If the deemed receipt date is not a working day, the deemed receipt date is the next working day. Section 102.3(a)(3); APD 051129-s; Ackerson v. Clarendon Nat'l Ins. Co., 168 S.W.3d 273 (Tex. App.-Austin 2005, pet. denied). Unless the great weight of the evidence indicates otherwise, an IC is deemed to receive the HO's decision the first working day after the day the HO's decision is placed in the IC's Austin representative's box. Sections 102.5(d) and 143.3(d)(2); Trinity Universal Ins. Co. v. Day, 155 S.W.3d 337 (Tex. App.-El Paso 2004, pet. denied). The deemed date of receipt of the HO's decision is used to determine the date of receipt even though a party indicates an earlier date of receipt. APD 050897-s. However, when Division records show the mailing of the HO's decision to the IW on a particular day at the correct address, the mere assertion that the decision was received after the deemed date of receipt is not sufficient to extend the date of receipt past the deemed date of receipt provided by Division rules. APD 041319. The party appealing the HO's decision must establish jurisdiction and timeliness of the appeal at the time the appeal is filed. APD 050891. A party has timely filed an appeal under Section 143.3 if a party mails its appeal within 15 days after the party is deemed to have received the HO's decision and the Division receives the appeal or an identical copy of the appeal within 20 days after the party is deemed to have received the HO's decision. Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653 (Tex. App.-Dallas 2008, no pet.).