Appearance at CCH/10-Day Letter
When a party fails to appear for a CCH, the ALJ will send a letter, known as a 10-day letter, notifying the nonappearing party that they have 10 days from the receipt of the notice to respond in writing to DWC and show good cause for the party’s failure to attend. (28 TAC Section 142.11(a)) Other parties to the proceeding may reply, in writing, to the nonattending party’s response within three days of receipt of response. (28 TAC Section 142.11(b)) Under 28 TAC Section 142.11(c), the ALJ shall issue a written ruling based on the filings allowed under subsections (a) and (b) of this section, and, if the ALJ determines that good cause exists for the failure to attend, the hearing will be rescheduled. If good cause is not found, or if the nonattending party does not respond to the notice, the ALJ shall issue a decision based on the evidence presented at the hearing and may recommend the issuance of an administrative violation. Note: 28 TAC Section 142.11, subsections (a) through (c), cited above, went into effect on January 7, 2019. APD 190213 and APD 210196.
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. Note: APD 071706 was issued before the changes to 28 TAC Section 142.11 cited earlier.
10-Day Letter Sent to Party’s Incorrect Address
The ALJ’s 10-day letter was mailed to an incorrect address for the IE, who appealed, contending that he had not been able to respond to the 10-day letter or attend the CCH. The AP reversed and remanded the matter to the ALJ to take evidence concerning the IE’s nonappearance at the CCH. APD 220552. See also APD 201401.
ALJ's Failure to Issue 10-Day Letter
The ALJ 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 ALJ to send a 10-day letter. The ALJ relied on the remand notice issued by the DWC Hearings program area, 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 ALJ 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. See also APD 190213, cited above.
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.
Under 28 TAC Section 127.5(g), if DWC has previously assigned a DD to the claim at the time a request is made, DWC will assign the same doctor to a subsequent examination for that claim unless DWC has authorized or required the doctor to stop providing services on the claim in accordance with 28 TAC Section 127.130.
28 TAC Section 127.5(c) provides that, except as provided in subsection (g) of this section (noted above), DWC will select the next available doctor on the DD list for a medical examination requested under 28 TAC Section 127.1 (relating to Requesting DD Examinations). A DD is available to perform an examination at any address the doctor has filed with DWC if the doctor:
(1) Does not have any disqualifying associations as described in 28 TAC Section 127.140 (relating to Disqualifying Associations).
(2) Is appropriately qualified to perform the examination in accordance with 28 TAC Section 127.130 (relating to Qualification Standards for Designated Doctor Examinations).
(3) Is certified on the day the examination is offered and has not failed to timely file for renewal under 28 TAC Section 127.100 (relating to Designated Doctor Certification), if applicable.
(4) Has not treated or examined the IE in a different health care provider role:
(A) Within the past 12 months; or
(B) For a medical condition being evaluated in the DD examination.
Note: 28 TAC Section 127.5, subsections (c) and (g) went into effect on April 30, 2023.
Burden of Proof on the Party Challenging the DD's Appointment
The ALJ found that a second DD was improperly appointed. The ALJ correctly placed the burden of proof on the IC, which was the party challenging DWC's order appointing the second DD; however, the ALJ found that DWC abused its discretion in the appointment of the second DD. The AP reversed the ALJ'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 IE 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 DWC 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 ALJ found that the second DD was improperly appointed. The ALJ incorrectly placed the burden of proof on the IC and found that the IC did not establish that the first DD was unable or unwilling to continue as DD. However, the IE was the party challenging the appointment of the second DD; therefore, the IE had the burden to establish that the second DD was not properly appointed. Because the ALJ incorrectly placed the burden of proof on the IC, the AP reversed and remanded the case back to the ALJ to apply the correct burden of proof in considering the evidence presented at the CCH. APD 042979.
ALJ Erred in Designating Second DD
The IC requested that the ALJ take official notice of the DRIS notes in the claim, which was granted. The DRIS notes in the claim revealed no instances where the first appointed DD requested authorization to stop providing DD services, repeatedly failed to respond to DWC requests or met any of the other criteria under 28 TAC Section 127.130(f),(g) or (h) which would constitute an exception to the requirement in 28 TAC Section 127.5(d) that if DWC has previously assigned a designated doctor to the claim at the time a request is made, DWC shall use that doctor again. The ALJ requested a different DD because he was concerned that the first appointed DD “might take umbrage in being instructed that his opinion of extent was rejected .…” The AP reversed the ALJ’s decision that DWC properly designated the second DD to perform the extent-of-injury examination and determine MMI and IR and rendered a new decision that the second DD was not properly appointed. APD 160228.
ALJ Erred in Finding Improper Appointment of DD by DWC
A DD was appointed to address extent of injury, MMI, and IR on a claim based on a DWC-32 (Request for DD Examination) filed by the IE in December 2022. That request resulted in a DD examination on those issues being scheduled by DWC for February 2023. Based on a request by the IC, the examination was stayed and an expedited CCH was held on the issue of whether the DD was properly appointed under TLC Section 408.0041 and DWC rules. The ALJ resolved the issue by deciding that the DD was properly appointed under TLC Section 408.0041 and DWC rules on the issue of extent of injury, but not MMI and IR. The ALJ’s decision regarding the proper appointment of the DD for extent of injury was not appealed and became final under TLC Section 410.169. A previous MMI/IR examination by the DD had taken place in October 2022. The AP cited APD 160697-s, which stands for the proposition that, in determining whether a requested DD examination occurs within 60 days of a previous DD examination, the controlling date is the date of the actual subsequent examination, not the date the request is made. The AP wrote that the IC presented no evidence or authority to show DWC did not follow TLC Section 408.0041 and DWC rules in appointing the DD to serve as DD to address MMI and IR for the February 2023, examination. The AP reversed the ALJ’s decision and rendered a new decision that the DD was properly appointed to serve as the DD to address MMI and IR in accordance with Section 408.0041 and Division rules. APD 230546.
Incompleteness of ALJ Decision
TLC Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. 28 TAC Section 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due.
An ALJ’s omission of findings of fact, conclusions of law, and determinations on an issue properly before the ALJ to decide does not comply with TLC Section 410.168 and 28 TAC Section 142.16. APD 230368.
In addition, exceeding the scope of an issue properly before the ALJ is subject to reversal. APD 230369.
The IE 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 IE's testimony and timely exchanged exhibits based on the IE's refusal to answer the interrogatories. The ALJ sustained the IC's objection and excluded the evidence and IE's testimony citing TLC Section 410.161. The AP reversed the ALJ's decision citing TLC Section 410.158, which states that "discovery . . . may not seek information that may readily be derived from documentary evidence described in [TLC] Section 410.160. Answers to discovery . . . need not duplicate information that may readily be derived from documentary evidence . . ." TLC Section 410.158(b). The AP remanded the case for the ALJ to admit and consider all exhibits which were properly and timely exchanged and to allow the IE 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 TAC 10.60 (Notice of Network Requirements; Employee Information). Texas Insurance Code Section 1305.005(d) and 28 TAC 10.60(a) state, in part, that the IC 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 IE with the information required under Texas Insurance Code Section 1305.451. The ALJ held that neither the IC nor the employer properly provided the information to the IE because the evidence did not establish that the information provided to the IE 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 IE signed a Workers’ Compensation Health Care Network Employee Acknowledgement Form and received an information packet titled Important Information for Employees Regarding Medical Treatment for a Work-Related Injury or Illness which contained all of the information required under Texas 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 IE on Page 2 of the information packet. Furthermore, 28 TAC Section 10.60(c)(3) (now 28 TAC Section 10.60(d)(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 IE requested a paper version from the IC or the employer. Since the evidence indicated that the information provided to the IE satisfied the requirements in Texas Insurance Code Section 1305.451, the AP reversed the ALJ’s determination that neither the IC nor the employer properly provided the information to the IE. 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 or her 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
TLC Section 410.164(c) requires the IC to file with the ALJ and deliver to the IE 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 Texas Insurance Code Art. 1.36, which was recodified 2001, effective June 1, 2003 as Texas Insurance Code Art. 804.102).
Address in Texas
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. See also APD 210561 and APD 210080.
Name of Registered Agent
The IC is required to provide the name of its registered agent for service of process on its carrier information form. See APD 210326, where the IC did not provide the name of its registered agent for service of process on the information form, only providing its own name.
Scope of 28 TAC 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 ALJ 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 28 TAC Section 124.3? The IE 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 ALJ 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 ALJ decided an issue not before her by incorporating IC waiver in her decision. The AP disagreed, noting that 28 TAC 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.
Employer as a Party in Dispute Resolution
TLC 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.
In APD 221776, the issue at the CCH was whether the employer was the IE’s employer for purposes of the TLC on a particular date; there was no issue of compensability of an injury sustained on that date, nor did the parties stipulate that the IC accepted liability for the payment of benefits for the injury. The employer filed an appeal to the AP of the ALJ’s decision, but the AP observed that the employer did not have standing to appeal the issue in the case because it did not become a party to the CCH. The AP held that the ALJ’s decision had become final under TLC Section 410.169, because a timely appeal had not been filed in the case.
28 TAC 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 ALJ's decision on the issue of the extent of the IE's compensable injury and remanded the case to the ALJ 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 TLC Section 409.0091 or TLC Section 409.009. The subclaimant health care insurer had standing under TLC Section 409.009 because it indirectly provided compensation for the IE and it sought and was refused reimbursement from the IC. The authorized representative of the subclaimant health care insurer did not have standing under TLC Section 409.009 in that it did not meet the requirements of TLC Section 409.009 because the evidence did not establish that the authorized representative had provided compensation directly or indirectly to the IE. Under the facts of this case, TLC Section 409.0091 does not apply because: (1) the IE's DOI is prior to September 1, 2007; (2) the subclaimant was provided information under TLC Section 402.084(c-3) after January 1, 2007 (pertinent to the application of TLC 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 TLC Section 409.0091.) APD 081065-s. In APD 160721, the ALJ did not allow the subclaimant to participate in the CCH. The subclaimant alleged that it had rendered services to the IE for the compensable injury and sought reimbursement for those services. The subclaimant contended it was a party under TLC Section 409.009 and it should be allowed to participate in the CCH. The AP held that the ALJ failed to allow the subclaimant, a party in the case, to participate in the CCH and remanded the case to the ALJ 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 TLC Section 409.0091. Under the facts of this case, the AP determined the subclaimant did not have standing under Section 409.0091 in that TLC Section 409.0091 did not apply because:
(1) The IE's DOI is prior to September 1, 2007;
(3) The self-insured had denied compensability of the claim; and
(4) DWC had determined that the IE did not have a compensable injury.
The AP held that as TLC Section 409.0091 does not apply, the subclaimant does not have legal standing to seek adjudication of the dispute under TLC 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 ALJ 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 ALJ's decision is received not counting Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code. TLC Section 410.202. The DWC must send the ALJ's decision to the IE and to the IE's representative, if any. The 15-day period does not begin until both the IE and the IE's representative, if any, receive the decision. 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 IE is deemed to receive the ALJ's decision not later than the 5th day after the date it is mailed by DWC. 28 TAC 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. 28 TAC 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 ALJ's decision on the first working day after the day the ALJ's decision is placed in the IC's Austin representative's box. 28 TAC 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 ALJ'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 DWC records show the mailing of the ALJ's decision to the IE 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 DWC rules. APD 041319. The parties have a duty to keep DWC apprised of their current addresses. APD 040299.
The party appealing the ALJ'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 28 TAC Section 143.3 if a party mails its appeal within 15 days after the party is deemed to have received the ALJ's decision and DWC receives the appeal or an identical copy of the appeal within 20 days after the party is deemed to have received the ALJ's decision. Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653 (Tex. App.—Dallas 2008, no pet.). There is no good cause exception to timely filing of an appeal. APD 010633.
Insufficiency of Appeal to AP
The IE filed with DWC a fax cover sheet that identified 9 pages were being sent along with the transmittal letter, a copy of the decision, and a document titled “You Have the Right to Appeal this Decision.” In a similar case, APD 160575, the AP held that the filing of an “Appeal Rights and Procedures” (brochure) is insufficient to constitute a request for appeal because it does not specify how or why a party disagrees with an ALJ’s decision. The AP also cited APD 94973, where it had explained that it had generally held that a simple written statement from an unrepresented IE that he or she thinks the ALJ was wrong and does not agree with the decision will be interpreted as a challenge to the sufficiency of the evidence, but that even those minimal filings it had accepted as appeals in the past indicated disagreement with the ALJ’s decision. The filing of the IE in the instant case did not state the grounds upon which review was requested and did not indicate disagreement with any portion of the ALJ’s decision. Though timely submitted, the filing of the copy of the decision along with the appeal rights document did not constitute the filing of a sufficient appeal and the time for filing an appeal has expired. Thus, the AP found that the ALJ’s decision became final under TLC Section 410.169. APD 221345.