The Texas Rules of Evidence do not strictly apply in administrative workers' compensation proceedings. TLC Section 410.165(a). Given this, whether or not evidence will be admitted or excluded during a CCH is determined under DWC rules, and is generally within the ALJ's discretion. 18 TAC Section 142.2(8); APD 042176.
DWC rules require parties seeking to introduce information into evidence to exchange that evidence no later than 15 days after the BRC, and thereafter as the evidence becomes available. 28 TAC Section 142.13(c). The AP has held that a party who belatedly investigates the facts and then does not disclose known information in order to make further investigation and development runs the risk of having evidence excluded for failure of exchange. APD 991744.
Documents that are actually exchanged or made available to all parties at the BRC need not be reexchanged within 15 days of the BRC. APD 941048.
Evidence not timely exchanged pursuant to 28 TAC Section 142.13(c) will be admitted only if the ALJ finds that good cause exists for failing to timely exchange the information. In determining whether a party has good cause for exchanging evidence after the 15-day period, the ALJ must apply a two-prong test. First, the ALJ must consider whether the party exercised due diligence in obtaining the evidence. APD 042996. Second, the ALJ must determine whether, after obtaining the evidence, the party promptly provided the evidence to the other party. APD 001090. Whether good cause exists is a question of fact for the ALJ to decide. 28 TAC Section 142.13; APD 000291.
Admission of Commission Records
Generally, an ALJ will not take official notice of the entire claims file; however, the relevant and essential portions of the DWC records contained in the claims file are admissible and can be offered as exhibits by any party. APD 010282. In addition, the ALJ may, on his or her own initiative, take official notice of a relevant document in the DWC claims file, even when no party has offered the document into evidence, in order to fulfill the ALJ's duty to fully develop the facts. TLC Section 410.163(b) and 28 TAC Section 142.2(10); APD 941171. In fact, the AP has previously required ALJs to take official notice of essential DWC records where compliance with the 1989 Act is at issue. APD 031441 and APD 210061.
A CCH was held to determine compensability and IC waiver. At the CCH, the IC sought to admit a confirmation email from DWC acknowledging that the IC had timely filed a "cert-21." The IE objected on the grounds that the email had not been timely exchanged. The ALJ sustained the IE's objection and the document was not admitted. The ALJ determined that the IC waived the right to contest compensability. The AP reversed and rendered a decision that the IC did not waive the right to contest compensability. While the rules of exchange should be enforced, the ALJ should have taken official notice of DWC's acknowledgement of receipt of the "cert-21" offered as an exhibit because it was, in effect, a DWC record. APD 032619-s.
Other Items Given Consideration
Although not entered as evidence, ALJs and the AP may consider provisions of the Texas Worker's Compensation Act, DWC rules, court cases, and APDs in rendering a decision. APD 020426.
Standard of Review/Abuse of Discretion
To obtain a reversal of an ALJ's decision based on the admission or exclusion of evidence, the appellant must first show that the evidentiary ruling was an abuse of discretion. In determining whether there has been an abuse of discretion, the AP looks to see if the ALJ acted without reference to any guiding rules or principles. Morrow v. HEB, Inc., 714 S.W. 2d 297 (Tex. 1986); APD 951076.
If the AP determines that the ALJ abused his or her discretion in admitting or excluding evidence, the AP then looks to see if reversible error occurred. The error is reversible if it was reasonably calculated to cause, and probably did cause, the rendition of an improper decision. Hernandez v. Hernandez, 611 S.W. 2d 732 (Tex. Civ. App.-San Antonio 1981, no writ); APD 041596.
Must Object at the CCH or Error is Waived
Generally, if the admission or exclusion of evidence is not objected to at the CCH, any argument that there was error is waived and the AP will not reverse the ALJ's decision based on an evidentiary objection on appeal. See Dicker v. Security Insurance Co., 474 S.W. 2d 334 (Tex. Civ. App.—Waco 1971).
Admission of Evidence was an Abuse of Discretion But No Reversible Error Found.
The ALJ admitted a document into evidence over the IC's objection that portions of the document had not been timely exchanged. The AP found that the ALJ had abused his discretion in admitting the document because it was not timely exchanged and there was no showing of good cause. Because the evidence in the document was cumulative, and the remaining evidence was sufficient to support the ALJ's determinations, the AP found that the erroneous admission of the document that the IC objected to probably did not cause the rendition of an improper judgment. Therefore, the erroneous admission of the document was not reversible error. APD 010739.
Admission of Evidence was an Abuse of Discretion and Reversible Error Found.
In resolving the disputed issue, the ALJ relied on documents offered into evidence by the IE which were intended to prove the date the IC received first written notice of the claimed injury. The IC objected to the admission of the documents because they were not timely exchanged within 15 days after the BRC, and there was no good cause for the failure to timely exchange the documents. The ALJ admitted the documents because he determined that they were either listed in the BRC report or discussed at the BRC. However, listing documents in the BRC report or discussing them at the BRC does not constitute good cause for failing to timely exchange documents. The ALJ's reliance on the erroneously admitted documents to prove the date the IC received first written notice of the claimed injury probably did cause the rendition of an improper decision. The AP reversed and remanded the case for further consideration excluding the records in question. APD 992764.
Note: APD 992764, which involved the issue of, among others, IC waiver of extent-of-injury conditions, was decided in the Texas Supreme Court’s decision in State Office of Risk Mgmt. v. Lawton, 295 S.W.3d 646 (Tex. 2009). The Court in Lawton held that 28 TAC Section 124.3 does not provide a waiver for disputes of the extent of the compensable injury.
The ALJ found that the IE injured his back moving a drill weighing 60 pounds while working. At the CCH, the IC asserted that the IE did not injure his back at work, but injured it working part-time for another employer or somewhere else. To support his claim the IE offered as evidence a statement from his father that the IE had not worked part-time as a bricklayer since about two years before the injury; a statement from the manager of the shoe store where the IE had worked part-time indicating that the IE did no heavy lifting and that he was not injured at his part-time job; a statement from a coworker that the IE did not do "hard work" at his part-time job; and testimony from two witnesses to bolster his claim. The IC objected to the admission and consideration of this evidence because the IE did not provide the documents and names of the witnesses to the IC within 15 days after the BRC. The ALJ overruled the objection and admitted the evidence for good cause because there was "no harm, no foul" and because the IE hired a new attorney after the BRC. The ALJ's ruling was improper and an abuse of discretion because "no harm, no foul" is not a proper legal standard, and hiring a new attorney was not good cause for not exchanging evidence within the required 15-day time period. Because the resolution of the case largely turned on the IE's credibility, and because all of the erroneously admitted evidence went to bolster the IE's credibility, the ALJ's error in admitting the evidence was reasonably calculated to cause and probably did cause the rendition of an improper decision. Therefore, the ALJ's error did constitute reversible error. APD 001090.
In resolving the disputed issue of disability, the ALJ made two separate requests for additional records. The second request made by the ALJ occurred 16 days after the record had closed and was made directly to the ombudsman for “whatever records of [a specific doctor] she was able to get.” TLC Section 410.163(b) provides that an ALJ "shall ensure the preservation of the rights of the parties and the full development of facts required for the determination to be made." ALJs are also specifically authorized to “request additional evidence” from the parties under 28 TAC Section 142.2(10). These important responsibilities must be exercised in light of and balanced with the fundamental requirement that both sides receive a fair and objective hearing. The ALJ is the neutral fact finder and, as such, cannot serve or appear to serve as an advocate. While the ALJ has a responsibility to develop facts necessary for an informed decision, this must be done in a manner and procedure that is outcome neutral and protects the procedural and substantive rights of the parties. The ALJ relied upon the documentation he requested and obtained from the ombudsman after the CCH to determine the disability issue. In order to maintain a neutral forum, an ALJ’s decision to reopen the record should typically be to clarify other evidence offered by a party or, at least, other evidence should point to the missing evidence as key to a well-informed resolution of the dispute. Based on the timing, manner, and repeated nature of the contacts, the ALJ’s request for additional records after the CCH constituted an abuse of discretion. Because that documentation was erroneously admitted by the ALJ and cannot be used to support his disability determination, a new decision was rendered that the IE did not have disability for the period in dispute. APD 160787; APD 160618.
In a CCH involving a dispute over entitlement to death benefits, the ALJ admitted into evidence excerpts from a deposition the claimant-beneficiary offered over the objection of the IC. The IC representative objected to the admission of the documentary evidence in question on the grounds that it was not timely exchanged. As part of his ruling overruling the IC representative’s objection and in favor of admission of the deposition excerpt for good cause, the ALJ stated on the CCH record that the threshold for good cause for a late exchange was lowered because of the nature of the dispute and that DWC rules provide that additional information obtained through a request for discovery could be exchanged on receipt. The AP found that the ALJ erred in overruling the IC representative’s objection and admitting the document without a showing of good cause for the claimant-beneficiary’s untimely exchange. The AP held that the threshold for establishing good cause for untimely exchange of documentary evidence is not lowered in disputes concerning death benefits. The AP also disagreed with the ALJ’s ruling that good cause exists where evidence is obtained by the opposing party through additional discovery processes as authorized by 28 TAC Section 142.13(f). The AP reversed and remanded the case back to the ALJ to make a decision without consideration of the deposition excerpts. APD 160363.
Exclusion of Evidence was an Abuse of Discretion and No Reversible Error Found.
The IC called Mr. K as a witness. On direct examination, Mr. K testified regarding the circumstances under which the injury was reported. During cross-examination, Mr. K objected on two occasions asserting the questions were irrelevant. The ALJ told Mr. K to answer the questions, or his testimony would be stricken in its entirety. Mr. K engaged the ALJ on the tone of her admonishment, and the ALJ dismissed Mr. K and excluded his testimony over the IC representative's objection. The ALJ should have considered the testimony given by Mr. K prior to being dismissed and decided the weight and credibility to give it based upon his reluctance to answer questions on cross-examination. The ALJ abused her discretion in excluding Mr. K's testimony in its entirety. Because the substance of Mr. K's testimony was somewhat reiterated by another IC witness, the ALJ's error was not reasonably calculated to cause and probably did not cause the rendition of an improper decision. Therefore, the ALJ's error did not constitute reversible error. APD 022830.
Exclusion of Evidence was an Abuse of Discretion and Reversible Error Found.
The IE offered medical records from a doctor, who was not on the approved doctor's list, to establish that she could only work part-time. The IC objected on the grounds that the offered records were from a doctor who was not on the approved doctor's list. The ALJ sustained the objection and excluded the records. 28 TAC Section 180.20(A)(2) which was in effect at the time of this APD, provided that doctors who provide any function in the Texas workers' compensation system must be on the approved doctor's list. However, TLC Section 410.165(b) provides that the ALJ shall "accept the written reports signed by a health care provider." It was an abuse of discretion for the ALJ to exclude reports from the IE's medical provider on the basis that the doctor was not on the approved doctor list. The AP found reversible error because the ALJ inquired several times about evidence that addressed the IE's work abilities. The exclusion of the evidence that specifically addressed these inquiries was reasonably calculated to cause an improper judgment. APD 051172-s.
Note: The DWC approved doctor list expired on August 31, 2007, and 28 TAC Section 180.20 was subsequently repealed on January 9, 2011.
At the CCH, the IC offered exhibits for admission into evidence. The IE objected to one exhibit, a report from the IC-selected RME doctor, on the basis that the RME doctor was not properly appointed by DWC under 28 TAC Section 126.5. There was no dispute that this report was timely exchanged by the IC prior to the CCH. The issue of whether the RME doctor was properly appointed had not been raised at the BRC and was not certified as an issue prior to the CCH. The ALJ kept the record open following the CCH to determine whether the RME report in question would be admitted or excluded. Prior to closing the record, the ALJ issued a post-hearing order excluding the RME report from evidence because the RME was not approved in accordance with the Texas Workers’ Compensation Act and DWC rules and, under 28 TAC Section 126.5(b), DWC shall not consider a report of an RME doctor that was not approved or obtained in accordance with DWC rules. The AP reversed and remanded the case back to the ALJ, holding that the ALJ abused his discretion because his exclusion of the RME report was based on an issue that was not before him to decide (that is, whether the RME doctor was properly appointed). The AP also cited TLC Section 410.165(b), which provides that the ALJ shall accept all written reports signed by a health care provider. APD 161283.